The Legal Substance of Abuse: Prescription Drugs

Tammy Cohen, PHR, SHRM-CP
June 13 2017

With the legalization of medicinal marijuana gaining traction in more than 26 states as well as 7 states and the District of Columbia for recreational use, changes in hiring parameters are the hot topic of the season. Positive results for weed on pre-employment drug tests are largely met with disapproval. The non-negative results that hold the largest significance for businesses stem from prescription drugs.

Prescription drug use is more than common in America. The Society for Human Resource Management (SHRM) shared statistics from the National Safety Council that reported 23% (or 1 in 5) of the U.S. workforce uses prescription drugs non-medically. Our workforce, not just adult Americans. These are employed professionals that currently work in the country, potentially at your company. And while some hiring managers might assume that any potential substance abuse is caught during a pre-employment drug screen, they would be wrong.

Most prescription drug abuse occurs after the employee is hired. Existing employees operate under little suspicion even as signs of abuse might permeate their presence within the office. Their actions will affect not only their own productivity but their fellow employees’ as well. For example, if Jim misses shifts often due to his substance abuse, Pam might not be able to move forward on a prudent project until he gets back to her with his portion of the work.

Employees are also more prone to injuring themselves on the job with impaired coordination and focus, an act that can lead to compensation claims.  Medications prescribed to an employee after an incident at work are one of the main sources for burgeoning opioid addiction in the workplace, and the company ends up covering the original dosage that will cost them untold amounts of money in the future.

HR departments find themselves treading water as they try to minimize the impact of opioid addiction in their offices. There are many legal protections that reduce the options employers have regarding the request of personal information on their employees. The Americans with Disabilities Act (ADA) lines out in strict guidelines that the Equal Employment Opportunity Commission (EEOC) only protects employer’s requests for full disclosure of an employee’s prescriptions if it affects, “public safety” and that impairment by the drug poses a “direct threat.” The EEOC are the primary enforcers of the ADA and hold companies reliable for mistreating disabled employees. The threat of invading candidate/employee privacy rights opens your company up to potential lawsuits.

The reason that opioid addiction is not always caught in an initial drug test is that employers don’t often include the extended oxycodone panel when designing their screening program.  They need to review not only their post-hire testing policies but also their test panels to be sure they’re mitigating all risks. This problem merely highlights the importance of maintaining a post-hire drug screening program where HR professionals emphasize the importance of opioid results as much as they do with results of illegal substances. The use of a compliant, third-party screener protects your HR department from potential risk by expressing only necessary information. Screening providers also handle the footwork of securing necessary re-tests and statements from the candidate before presenting the information to your company.

Marijuana might be the main drug on hiring managers’ radars now, but opioid and prescription drug abuse have plagued the workforce for years before weed grew in popularity of public opinion and there is no end in sight to its reign. While the law regarding marijuana use remains on the side of the employers, for the time being, internal systems should switch gears while they still can.

About Tammy Cohen

Tammy Cohen, an industry pioneer and expert in identity and employment screening, founded InfoMart 30 years ago. Deemed the “Queen of Screen,” she’s been a force behind industry-leading innovations. She was most recently the first-to-market with a fully compliant sanctions search, as well as a suite of identity services that modernizes talent onboarding. Tammy revolutionized the screening industry when she stepped into the field, developing the first client-facing application and a due diligence criminal search that has since become standard for all background screening companies. Cohen has received national awards and honors for her business and civic involvement, including Atlanta Business Chronicle’s Top 25 Women-Owned Firms in Atlanta, Enterprising Women Magazine’s Enterprising Women of the Year award, the YWCA of Northwest Georgia’s Kathryn Woods Racial Justice Award, and a commendation in the 152nd Congressional Record. To learn more about Tammy, visit

About InfoMart

InfoMart has been revolutionizing the global background and identity screening industry for 30 years, providing businesses the information they need to make informed hiring decisions. They develop innovative technology that modernizes talent onboarding, including a first-to-market biometric identity authentication application and a verified sanctions search. The WBENC-certified company is a founding member of the Professional Background Screening Association, and they have achieved PBSA accreditation in recognition of their consistent business practices and commitment to compliance with the FCRA. The company is dedicated to customer service, speed, and accuracy, and it has been recognized for its success, workplace culture, and corporate citizenship with over 45 industry awards. To Get the Whole Story on InfoMart, please visit, follow @InfoMartUSA, or call (770) 984-2727.

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