The National Safety Council (“NSC”) has published a report entitled Prescription Pain Medications: A Fatal Cure For Injured Workers, urging employers to educate employees about the dangers of using opioid pain medications – such as addiction and death – while also taking steps to avoid potential liability in workers’ compensation and personal injury litigation.

The NSC report states that injured workers increasingly are prescribed opioid pain medications (such as Vicodin, OxyContin, Percoset, Morphine, Codeine, among many others). The use of opioid pain medications can lead to more serious harm to injured workers, including addiction, overdose and death. According to the Centers for Disease Control and Prevention, more than 43,900 people died of drug overdoses in 2013, of which 16,235 were tied to prescription opioids alone or in combination with other prescription medications or alcohol. The NSC report states that overdose deaths from prescription opioids now exceed deaths from both heroin and cocaine combined.

Additionally, the NSC report lists fifteen court cases in the last six years in which an injured employee died of an opioid-related drug overdose. In some of these cases, the courts held that when injured workers fatally overdose on medications prescribed to treat pain related to a compensable workplace injury, the deaths were compensable by the workers’ compensation program.

NSC recommends that employers and workers’ compensation insurance providers be proactive to reduce their legal risk in situations where employees are being treated with pain medications as follows:

  1. Educate all employees about the hazards associated with prescription pain medication use, especially injured employees. Key educational messages include:
    • The risks of opioid pain medication use, especially for workers with sleep apnea, COPD or other respiratory problems;
    • Hazards associated with using together multiple forms of opioid pain medication such as short-acting and long-acting drugs together;
    • Dangers of using alcohol and sleep aids with opioid pain medications;
    • The risks of addiction and drug overdose.
  2. Require workers’ compensation and network providers to use opioid prescribing guidelines issued by the American College of Occupational and Environmental Medicine. These guidelines include:
    • Informed consent;
    • Thorough patient history with a more detailed screening if treatment continues for more than two weeks;
    • Urine drug monitoring;
    • Checking the state prescription monitoring database;
    • Avoiding co-prescribing benzodiazepines with opioid pain medications; and,
    • Discontinuing treatment with opioids when patients reach meaningful functional recovery.
  3. Use caution and require prior approval for the use of methadone to treat chronic noncancer pain.
  4. Screen injured workers for depression, mental health conditions and current or prior substance use.
  5. Require network providers to utilize state prescription drug monitoring programs.

Employers also should review their workplace drug and alcohol testing policies and update them if appropriate. Many employers believe that their drug test panels cover a wide range of opioid (or opiate) drugs.  A “standard” 5-panel tests for marijuana, cocaine, amphetamines, opiates and PCP.  The opiates tested for in a “standard” drug test panel generally include heroin, morphine and codeine, but not synthetic opiates such as oxycodone, hydrocodone, oxymorphone or hydromorphone (i.e., Vicodin and OxyContin, among others).  Employers who wish to test for potential abuse of prescription opioid painkillers should speak with their drug testing vendors to request an “extended opiates” panel or “synthetic opiates” panel.  Of course, employers should have all positive drug test results reviewed by a Medical Review Officer (“MRO”) (a licensed physician with expertise in analyzing drug test results) to ensure that they do not take adverse employment actions based on lawful prescription drug use.  A MRO discusses the positive drug test result with an applicant or employee to determine whether the applicant or employee is using a prescription drug legitimately.  The MRO may request a copy of the prescription and may request to speak with the prescribing physician.  If the MRO is satisfied that the use of the prescription drug is legitimate, he will verify the result to the employer as a negative.  If the MRO is not satisfied that the use of the prescription drug is legitimate, he will verify the result to the employer as a positive.  This process ensures that employers do not take discriminatory actions against applicants or employees who lawfully use prescription medications.