Many people do it; they stop taking a prescription medication but save the remainder of it. Sometimes it sits in the medicine cabinet and the patient may decide to take it later when experiencing similar symptoms. The question is whether at some point that old prescription is so out of date that taking the medication amounts to the illegal use of a controlled substance. For the plaintiff in a recent case, even a 16 year old prescription turned out to be a validly prescribed medication.
In the recent case of Walker v. Cook County Sheriff and Cook County Sheriff’s Merit Board, Plaintiff Walker was a 32 year veteran deputy sheriff for Defendant. The Sheriff’s Office had a drug free workplace policy. After being randomly selected for a drug screen, plaintiff tested positive for oxazepam. The Sheriff’s Office opened an investigation, which included allowing the employee to bring in a valid prescription for the positive test result.
Plaintiff produced a number of prescription bottles during the investigation, including a 1995 prescription for lorazepam. He said that he had taken a small portion of a tablet from that bottle the night before his drug screen. Plaintiff was directed, but failed, to produce “additional documentation to demonstrate that he was lawfully in possession of that controlled substance at the time of testing.” At a hearing before the Sheriff’s Merit Board Commission, Sheriff’s Office personnel testified that while there was no written policy that required employees to produce a current valid prescription to explain a position drug test, there was an order to that effect from the Drug Testing Unit.
The Plaintiff was discharged for violating the drug free workplace policy. The Circuit Court affirmed the discharge decision.
The Appellate Court reversed this decision, finding that no basis in law or Defendant’s policy existed which converts the ingestion of once validly prescribed drugs to using illegal controlled substances by mere passage of time. Plaintiff had a prescription for the drug for which he tested positive, albeit a very old prescription. The Court also found that Defendants failed to establish that the Sheriff’s drug policy exempted only currently prescribed drugs from a positive drug test finding. Therefore, the employer failed to support its decision to discharge Plaintiff.
Employers should take note of this decision and double check their drug policies. Generally, prescription medications are given to treat or ameliorate a specific health condition. If the employee no longer suffers from the condition, then the ingestion of the drug once prescribed for it is likely a violation of the intent of the policy and the policy should reflect such. It is reasonable to require that the consumption of any prescription medication which is revealed on a drug test, will only be excused as a positive result if the employee has a current prescription for it as treatment for a current condition.
