drug testing

February 18, 2021

Posted on by jwilbert

QUESTION:        We entered into an exclusive contract with an anesthesia group, and were wondering whether we can require the anesthesiologists and other group personnel to submit to drug and alcohol testing?

ANSWER:           Yes – as long as testing is addressed in the contract.  Since exclusive contracts are usually between the hospital and the group – and not with the individual physicians of the group – only the group itself is actually bound by any requirements set forth in the contract.  Therefore, it’s important that the contract language state that each of the group’s physicians, as a condition of providing services at the hospital under the contract, shall be free from the influence or presence of alcohol or drugs and that this shall be enforced by the group, which shall conduct testing of its physicians at the time of conditional offer of employment, following a reasonable suspicion of use or abuse, and upon return to work after a leave of absence for drug or alcohol treatment.  This approach can be reinforced by requiring every physician of the group to sign an agreement to be bound by all the terms of the hospital’s contract with the group (and the contract should state that the group will require each physician to sign such a statement as a condition of employment).  Also, a hospital and its medical staff can achieve a similar result by having drug and alcohol testing requirements in the bylaws or another medical staff policy.  Since a group’s physicians would have to be appointed to the medical staff and granted clinical privileges in order to practice at the hospital, the group’s physicians would have to comply with any requirements in the bylaws or other policies, including those for drug and alcohol testing.

August 6, 2015

Posted on by hortyspringer

QUESTION:        Our hospital has a drug testing policy and drug-free workplace policy that prohibit the use of marijuana. However, we live in a state which recently legalized the recreational use of marijuana. Do we need to revise our policies?

ANSWER:           No. In the interest of protecting patients, many hospitals have turned to drug testing their employees and potential employees to screen out individuals who may present a risk to patient safety because of substance abuse or addiction. With some states legalizing marijuana for recreational or medicinal uses, hospitals in those states have struggled with the question of whether they can take an action against an employee or potential employee for testing positive for marijuana.

A recent opinion issued by the Supreme Court of Colorado, in the case of Coats v. Dish Network, LLC, addresses this question. The court concluded that an employer can discipline an employee for testing positive for marijuana during a workplace drug test. According to the court, even though marijuana is legal under state law, it continues to be illegal under federal law.

The employee, a quadriplegic confined to a wheelchair, worked as a telephone customer service representative for Dish Network. He obtained a Colorado-issued license to use medical marijuana to treat painful muscle spasms. He only used the medical marijuana at home, after work. Dish Network terminated him after he tested positive for marijuana during a random drug test. The employee sued for wrongful termination, claiming that state law prohibited Dish Network from terminating his employment for “lawful activities.” The Supreme Court of Colorado rejected his claims, finding that marijuana use, both recreational and medicinal, is prohibited by federal law and, thus, could not be considered a “lawful activity.”

If the trend of states legalizing recreational or medicinal marijuana continues, this issue will keep arising. For employees who are disabled and using medical marijuana prescribed by a physician, the Americans with Disabilities Act (“ADA”) may also come into play. However, the ADA does not protect individuals who are currently engaging in the “illegal use of drugs.” Under the ADA, the term “illegal use of drugs” means the use of a drug, the possession or distribution of which is unlawful under the federal Controlled Substances Act. The Controlled Substances Act lists marijuana as a Schedule I substance, which means, among other things, it has no accepted medical use and the use of it is a federal criminal offense. Thus, an individual currently using medicinal marijuana would not be protected under the ADA because he or she is considered to be currently engaging in the “illegal use of drugs.”

Hospitals can rest assured that their drug testing and drug-free workplace policies which prohibit the use of marijuana are legitimate as long as marijuana is illegal under federal law.

To learn more about these and other employment-related issues and how they impact the employment of physicians, join Henry Casale, Rachel Remaley, and Charles Chulack in Las Vegas, Nevada from October 15 through 17, 2015 for the Physician Employment Institute.