In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record with the majority of deaths from opioids. The CDCP reports that 78 Americans die every day from an opioid overdose. Prescription opioid abuse also has been linked to the national increase in heroin addiction. Commonly prescribed opioid painkillers include hydrocodone (Vicodin), oxycodone (OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing codeine.

However, a recent lawsuit by the Equal Employment Opportunity Commission (“EEOC”) against a Sioux Falls, South Dakota casino reveals the tension between an employer’s concern about prescription drug abuse in the workplace and complying with the Americans with Disabilities Act (“ADA”).According to the facts given in the lawsuit, Kim Mullaney applied for a position with Happy Jack’s Casino. The EEOC’s lawsuit states that Mullaney had a recognized disability under the ADA involving chronic pain and had a valid prescription for the prescription drug hydrocodone. Mullaney received a job offer from Happy Jack’s, but the offer was withdrawn after a routine pre-employment drug test came back positive for hydrocodone. According to the lawsuit, Mullaney told Happy Jack's Casino that the test reflected prescription drugs that she took for her disability, and even though she told them she would provide additional information if needed, Happy Jack's Casino refused to hire her. According to the complaint:

Because [Happy Jack’s] didn’t offer Mullaney a chance to offer proof that the drugs were prescribed by a doctor for a medically-recognized condition, the company violated the Americans With Disabilities Act. Blanket drug-testing rules that cover legally-prescribed medications do not comport with the law

Typically, most company drug testing policies include provisions that allow employers to either disclose their legally prescribed prescription in accordance with the ADA, or to otherwise explain or contest a positive test result. However, this lawsuit should service as a notice for employers to review their current drug testing policies. This workplace issue is further complicated by the ongoing decriminalization of marijuana in the United States. Approximately half the states already have legalized marijuana, for either medical or recreational use, and another eight states will be voting on the issue in November.