CPA Practice Advisor

JUL 2018

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THE LABOR LAW ADVISOR Since the EEOC takes the position that employers are not permitted to require employees or applicants to reveal the use of prescription medication, some employers “encourage” employees to report opioid usage to a plant nurse or other medical personnel. If a company has or adopts such a policy, due to legitimate safety concerns, more widespread dissemination of the need for voluntary reporting would likely result in the type of information sought. Of course, once reported, the employer would have to go through the ADA interactive process to consider whether a non-opioid drug might be substituted to address the disability. This would entail contact between the company’s medical review officer and the employee’s or applicant’s prescribing physician. If a change to a non-opioid medication is not feasible, then an employer would have to consider if any reasonable accommodation could be made. If the job at issue could be considered safety sensitive, the employer could take the position that it would be dangerous to have a person who is routinely using opioids on such a job. If the issue is with a current employee, reasonable accommodation would require that the employee be considered for any open job where the use of prescription opioids does not pose a danger. With regard to applicants, the procedure would be similar, except that an employer would not be required to accommodate by offering them an alternative open position. However, if their treating physician refused to try to substitute a non-opioid medication for treatment, the employer would then have to rely upon its own medical expert’s opinion that the use of an opioid posed a risk of harm to the applicant and potentially others. It would be the “direct threat” defense under the ADAAA for refusing to hire the applicant. The safety risks would have to be well documented and not be mere speculation. In the case of medical marijuana usage in those states that have adopted such laws, the process would be quite similar. Medical marijuana would be considered a prescribed drug. Unless and until states that have passed such laws begin to take the approach of the Massachusetts Supreme Court, that such usage is to be treated under the ADA reasonable accommodation analysis, employers with drug-free workplace policies may terminate or refuse to hire such persons. Marijuana, medical or otherwise, remains an illegal drug under federal law. Conclusion Cautious employers will want to carefully monitor how the EEOC, as well as state law, treats prescription opioids and medical marijuana for possible reasonable accommodation purposes. It is a rapidly changing area that will likely place greater burdens on employers. Streamline Reporting. Improve Financial Efficiency. Focus on Your Mission. Having the right financial management system in place to generate the comprehensive reporting of your critical data ensures your constituents have all the financial reports they need to fulfill their responsibilities. ■ ASU 2016-14 FASB reporting ready. ■ 990/Compliance reporting. ■ Endowment reporting. ■ Internal reporting. ■ Funder/Grant reporting. ■ Board reporting. AccuFund's cloud or on-premise solutions, designed specifically for nonprofits, accomplishes all your reporting requirements, saving time and resources each month and lowering overall costs. View a short, three-minute video about AccuFund's reporting capabilities at www.accufund.com/reporting-cpa or for immediate discussion about fulfilling your reporting requirements call 877-872-2228 x215.

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