Take two of these, and hope you don’t get fired.

NYT reports today about some companies who have started including prescription drugs in their random drug testing, and dismissing employees who test positive EVEN WHEN THEY HAVE A VALID PRESCRIPTION.

Nurse: So, random drug testing at work is not news, nor is the fact that these tests often include presription drugs– but what IS significant about this case is that having a valid prescription does not get you off the hook. There are a lot of problems with that, obviously– some drugs are tested for when others are not, people with a legitimate need for a drug can be fired for using it, people who are able to perform their jobs safely are fired out of concern that they could potentially at some point be impaired, maybe others too . .. ?

Lawyer: Also some privacy concerns — your employer doesn’t have a right to know your private health information, whether or not they use that information to fire you. Might deter people from taking their prescribed drugs because they’re afraid of losing jobs.

Nurse: It seems like the entire thing could be conducted through a third-party company. . . and IF the employer was not firing people for legal precriptions they would never know about them, which makes sense. But you’re right, it seems like a privacy violation for your employer to test your urine for various substances that you have a right to use, legally speaking, and then fire you for it, especially because they cannot prove that you are using them at work. If you take a vicodin after work, your urine will test positive for hydrocodone. that’s even less your boss’ business than if you took one at work. Now, this isn’t totally screwball, because there are legitimate concerns that an employee of say, an auto plant could be a danger to herself and others if she was impaired. Many of the medications under discussion (like hydrocodone and oxycodone, which are the narctocics in vidodin and percocet) legitimately can impair your ability to operate machinery, and they are labeled as such.  So sure, I understand the concern.

Lawyer: But. . . is the situation such that one could be a danger to others without exhibiting any signs whatsoever of altered behavior? Is this an across-the-board kind of effect? Nobody can drive safely when intoxicated — but do these drugs affect everyone that way?

Nurse: Well, no, and it matters how  much you’ve taken, what your tolerance is, and your general suceptibility to those side effects. Some people will be totally safe and some will be impaired. But what troubles me is that it is widely practiced to test if there’s cause to do so– someone is behaving strangely, appears impaired,  etc. Why do employers feel this is insufficient? Do they have a leg to stand on, legally? Is it really safer to use random tests than targeted ones?

Lawyer:  I agree that this is very troublesome, especially in jobs that don’t seem to have abnormally high safety risks. The question about a leg to stand on legally is a tricky one, and the NYT article starts to get into some of the problems.

The biggest one that occurred to me on a skim-through was the Americans with Disabilities Act — which forbids employers to fire people for having any kind of disability that don’t significantly interfere with their ability to do their job and even requires the employers to make any reasonable accommodations necessary for disabled employees to work there.
So if you have an employee who needs a strong pain medication. . . you see where I’m going with this. They need a reasonable belief that the person’s condition is interfering with their job. Hence, no need for random testing. Let alone firing.  It seems like they are moving to suggest that a positive result on a random drug screen might constitute grounds for reasonable belief that the person cannot do their job. Nurse, is this feasible? (this is probably shaped by the answer to my question above.)
Nurse:I agree with you that the present standard addresses this. If they have data that shows that a high percentage of employees who are involved in accidents have tested positive for legal precription drugs, then they are adressing a problem (even if they are doing so illegally/imorally/whtever). If not, then they are not, and  this whole thing is bogus.
Lawyer: And yet, the testing is surely expensive, as is the turnover in the work force — they must be finding it somehow worthwhile.
Nurse:And again, if using certain prescription medications makes one inelligible to perform the job, that needs to be an up-front disclosure, right? Ok, so a person with epilepsy cannot be a truck driver. That makes sense. Can a person with pain then not work on an assembly line? If they are going to make that argument, they better do it loudly and before anyone is hired, or has worked there for 20 years. Do you suppose the company in the article has any data to back them up?
Lawyer: This is a good point — if someone does a job perfectly well and safely for 20 years, exhibits no change in behavior, and is fired because of a health condition, that seems pretty indefensible. Changing the rules after someone has made a real investment in signing up with you sure looks bad.
Nurse: Now, I can imagine this being somewhat more complicated among people who have access to such drugs as part of their jobs– nurses, pharmacy techs, etc. For us, a positive drug test is probably somewhat more serious even if there is a legitimate explanation because we are in a position to steal drugs. Having a prescription doesn’t mean you didn’t steal them. I’d like to think people don’t do this, but evidence does not back me up. But even if this more delicate situation, I don’t think it can be justified unless it is proven that your ability to carry out your duties safely is compromised.
Lawyer: I would add that at the very least, I would expect the employer to offer a long-time employee an alternate assignment if they believe a prescribed drug or health condition is interfering with the employee’s ability to safely perform his or her job.
Nurse: Lots of employers, especially in healthcare, offer rehab, repeat testing, etc. for use of illegal drugs or illegally used prescription drugs. That doesn’t make sense if you are talking about a legit precription, but it just goes to show you that there are more lenient pathways that don’t lead to a nation of zombie-employees showing up stoned every day.
Lawyer: Repeat testing doesn’t do the trick here. In fact, this company offered it. But then you’re in a great position: go off the meds your doc prescribed for you for a health condition so you can pass the test, or lose your job.

Ping Pong Post: Manny Being… picked apart by Nurse and Lawyer

First of all:

Dear Manny,

WHY? Why are you such an idiot? I loved you so hard. I was THERE when you hit that 500th home run. I defended you when my friends called you lazy and ugly. Not because you aren’t lazy and ugly, but because you were Manny. Now? You suck.

Love,

Amy

Also, I’m glad I never bought your Jersey. Jerk.

There are two basic legal issues to look at here.

1. What did Manny actually do wrong/ how did they catch him?

2. Can anybody sue anybody else as a result of this?

Lawyer: The answer to #1 is complicated, and interesting, I think, for Nurse to address. Manny claims that the drug was for a legitimate medical use. And everyone responding says this is highly unlikely. Which, granted, it probably is. But IF Manny were telling the truth, then he still didn’t follow the rules — MLB would require that he get a Thereputic Use Exemption — IN ADVANCE of taking the drug.

Nurse: When you are asked to take a drug screen, you are responsible for knowing any medications that you are taking which were legitimately prescribed that could show up. You are given the opportunity to disclose them and provide proof that it’s legit. I have had this opportunity when I’ve been tested for work, and I would be shocked if athletes weren’t given the same chance.

Manny used used human chorionic gonadotropin. HCG is a hormone that females make during pregnancy– it’s the hormone that a pregnancy test detects . It may be prescribed for women who are having fertility problems– that’s not a difficult leap to make. It may be occasionally prescribed for men who are having fertility problems also because it helps men produce male hormones– like testosterone, although it isn’t well studied. Do we see where this is going? We get even more suspicious noting that experts say HCG is sometimes used by steroid users coming off a course while the body’s own testosterone production is shut down.

HCG is prescribed under several brand names, and indicated for infertility in women and low levels of male hormones in men. More information is available from Micromedex, a clinical drug reference widely used and trusted.

Lawyer: According to the New York Times, he didn’t actually fail a drug test. Something in his medical records (which apparently they get to see — nurse? Thoughts?) was damning enough to trigger the suspension. And from what I understand, there was something suspicious but not sufficient in a urine sample, which led them to pull the medical records, which contained the damning entries.  Baseball lets the commissioner suspend plays for “just cause”  (note, you non-legal types, that that doesn’t mean “just because,” it means  a fair and sufficient reason.) And in fact, this has been the case for most of the high-profile suspensions that have happened in the last few years.

The long and the short of it is, Manny didn’t follow the rules.

Nurse: although the urine tests were suspicious, it was the investigation following that showed Manny was prescribed HCG, and this was the cause for his suspension, according to Bud Selig. Manny says the drug was prescribed for  a“personal health issue.” This would mean some kind of hormonal or pituitary problem, but it’s pretty suspicious. I’m wondering: if they can investigate his medical records to determine what was prescribed, can they also investigate why? If I were Manny, I would certainly disclose whatever condition made it legit, so. . . maybe not so much. Sure, it’s a gross violation of privacy to dig through someone’s medical records and do it publically, but when you sign up to play pro sports, should this be part of the package?

Lawyer: For issue # 2, I really don’t know know if anyone has real legal recourse here, though this being America, I’m sure someone will try a law suit. Some possible interessting scenearios:

The Dodgers sue Manny to recover all sorts of lost revenue — interesting especially in light of their attempts to market much more heavily to Hispanic fans.

Nurse: I foud some numbers on the WSJ: Mr. Ramirez generated roughly $7.6 million in ticket sales, parking, food, drink and merchandise for the Dodgers, and average attendance jumped after his arrival. The Dodgers sold 14,000 Ramirez T-shirts, 7,000 dreadlock wigs and 500 jerseys. When he signed a new two-year, $45 million contract in March, the team spent an estimated $2 million on advertising for the season. The campaign included splashing his image onto billboards. A Dodgers spokeswoman says they will be replacing those billboard images soon.

Lawyer: Nice one, Nurse. That’s exactly the sort of thing I could imagine them suing over.

Other possibilities: Fans sue Manny or the Dodgers

Or, as Gabe Feldman suggests (is he joking or not?)  on his Sports Law Blog, fantasy baseball types sue Manny because now their fantasy teams are in the crapper. (More about that here.)

I seriously don’t know how any of this would work, and I probably never will, because sports law is not exactly on my list of must-take classes.

But I do know this: the way that tort law works in this country, it’s meant to more or less allow money-related issues and perceived unfairness to work themselves out. There’s been a lot of debate about how to enforce the drug policy in baseball and many other arenas (zero-tolerance is desirable in some ways, but also flawed, not least because the testing is imperfect.) If players could be sued for big bucks for violating the drug policy, isn’t that likely to be more effective than simply suspending them for a few games? MLB doesn’t have to make new draconian rules. Our existing legal system, applied to this situation, could get it to right itself.

One final note: though I still kind of can’t believe there’s a whole blog devoted to the rules and legal issues of fantasy sports, the folks at SportsJudge did bring up an interesting point: there is a clause in the standard player contract that basically says the player has to behave. It doesn’t specify what constitutes behaving in terms that are really any more specific than that. And if he doesn’t, the club can boot him. Does this count?


Ping-Pong Post: Strip Search

The basic case: a 13-year-old girl was strip-searched because the school suspected that she had prescription-strength ibeuprofen pills. Why did they think this? Because another 13-year-old girl said she did. And if there’s any creature we know to be super-loyal, it’s the 13-year-old girl. They also claim to have seen her acting “unusually rowdy” at a dance a few months earlier. Which to them means she was intoxicated at that time. She had no disciplinary record.

Nurse: It should be noted that this was part of a “zero-tolerance” drug policy. To me that says it was clearly meant to be an example in a way, or a strong statement. A misguided one, I’d say, but . . . I’d bet that ibuprofen wasn’t really the reason they did it.

Now, off to the Supreme Court!

Lawyer: It sounds as if they were doing it on principle, rather than in service of an actual laudable goal. Which definitely isn’t a good start if they wanna win this one.

Leaving aside for a moment the specifics of this case, let’s just think a minute about the basic principle in play here: restrictions and intrusions are acceptable, to a point, if the goal they accomplish is sufficiently important. Right? We allow x-rays, pat-downs, the “foot strip” search, and to be asked to remove any kind of bulky garment at the airport, in the name of safety, because the risk has been established. But we don’t allow law enforcement to break into private homes without a warrant. What we’re looking at here is going to fall somewhere on that continuum: the goal is keeping ALL illegal drugs out of schools. Just how far are we as a society willing to go to achieve that?

Nurse: Let’s not forget that kids are required by law to go to school, but no one has to go to the airport.

Lawyer: I think that’s a large part of why we’ll accept so much intrusion at the airport, when things like this make us bristle so hard.  I don’t know if there’s an absolute standard here — only what society will and will not accept. Also, I’d venture to guess that how far we’ll go should be different for narcotics and hallucinogens than for a pill the strength of two advil.

Here’s a quote from the article:

“Her assertion [that she has no disciplinary record] should not be misread to infer that she never broke school rules,” the district said of Ms. Redding in a brief, “only that she was never caught.”

Lawyer: WHOA THERE. Come again? So under school rules, I guess all students are guilty until proven innocent? There is NO goal that warrants that assumption.
Is there any case in which a strip search would be appropriate? Tough to say.
A pat-down? Sure. A locker search? You could convince me.

Nurse: I’d say honestly, no! Also, this student states that she wasn’t asked if she was carrying drugs before she was searched.

Lawyer: Yes, that was clearly a mistake. No one seems to claim that that particular piece was acceptable.

Nurse: AND, I’m not a psychologist, but it seems to me to be common sense that being strip searched at school would be traumatic for an adolescent who might have body issues and social insecurties.
Lawyer: So there are really three questions here.
1. Was the school wrong to search this girl in this way?
2. Is it ever okay for a school to search a student in this way?
3. Is a lawsuit against the school and/or its officials an acceptable, appropriate way to deal with this issue?
I think you’re going to have a tough time convincing any of us that the answer to #1 is no. It seems pretty clear that they overstepped, unless they have some good evidence they haven’t mentioned yet.

Nurse: But we need to think about why! Why is this an overstep? Would it be an overstep if it wasn’t done to a young teenager? If it wasn’t in a place that the law mandates she be? If they really thought she was using or selling dangerous drugs? I guess some of this is #2.

Lawyer: #2 is tricky. If a student comes out of the bathroom with a bloody nose and a lot of energy and has a previous arrest for cocaine, can we search her? What about if a teacher in the bathroom heard sniffing and thinks she might’ve seen a little plastic bag go down the girl’s shirt? The problem, of course, is that things like this always end up with a resonableness standard in them, which has to be vague, but is, well, vague, which opens the door to abuse.

Nurse: I still don’t think a strip search is appropriate. I really don’t. I think we have to find other ways– a bathroom monitor, a locker search, fine. That actually leads me to another question– some school athletic programs have random drug screenings. Is that ok? Is it ok if it’s done to the whole student body? How is that the same and/or different?

Lawyer: Well, at a minimum, an athletic program is opt-in, where school is not. But I think the goal there is perhaps even more complicated, especially given the headlines in baseball this last year or two… a whole new post on that, I think, at some point.
And as for #3 — well, what are her other options? Anything that get to the supreme court like this clearly isn’t about the money. It’s about clearing up an important principle in the laws that govern our society. So I’m going to say yes, it’s appropriate. The argument against it is that a successful lawsuit like this will encourage more lawsuits. But as long as there’s doubt about what’s acceptable, I think the lawsuits are actually a good thing — they’re allowing society to correct itself.

Nurse: But she’s suing for financial damages? I don’t know that that seems appropriate, really. I understand the need to challenge the practice under the law, but how does money enter the picture?

Lawyer: Money money money. That’s how our system is structured – that’s how you challenge the behavior. If the school or the official is forced to pay punitive damages, it’s only really to establish the inadmissibility of the behavior, and to deter others from disregarding the ruling against it. And when you think about it, in many cases, that basically works.

Nurse: Also, she was strip searched by the school nurse and a secretary. Is that either of their jobs? Does that undermine the role of the nurse? I sure think it does. You can bet that girl never went to the nurses’ office for help after that.

Lawyer: Agreed. That’s not right. But then, it also wouldn’t be right for it to be one of her teachers. Or a guidance counselor. I wonder what would’ve happened if the nurse had refused to participate. Likely they’d have recruited another female staff member. But at least a point could’ve been made. I’ll be surprised if the school wins this case. You can quote me on that.