Damned if You Do, Damned if You Don't

I am increasingly convinced that contradictory regulations that make it impossible even for people of goodwill to be in compliance are a feature, not a bug of the current system.

…Common sense dictates that any medication that carries with it a warning that it “may cause drowsiness” or that the patient should “use caution” if operating machinery may pose a risk in the workplace. It is for this reason that many employers adopt a policy requiring employees to self report the use of prescription pain killers. This is especially important in potentially dangerous workplaces such as manufacturing and construction.

In a recent action that defies common sense, the Equal Employment Opportunity Commission has taken the position that such policies are unlawful under the Americans With Disabilities Act. The ADA prohibits an employer from conducting “medical inquiries” without a business reason to do so. In EEOC v. Product Fabricators, Inc., an action in federal court in Minnesota, the EEOC required a manufacturing employer to abandon its policy of encouraging employees to inform supervisors if they are under the influence of narcotic pain killers such as Vicodin. The EEOC took the position that an employer cannot ask about prescription pain killer usage unless it has “objective” evidence that an employee is impaired on the job.

This places employers in a very difficult position….

Walter Olson also has comments at the link.


  1. Benjamin Cole:

    The EEOC joins the ranks of the USDA, HUD, Commerce, Homeland Security, 2/3rds of Defense and Labor as fit for total axing.

    Sheesh, do we need these guys anymore?

  2. me:

    Same rationale behind conflicting orders like "Getup/Sit down" - it's a power play. As long as almost anyone is in violation of something, exercise of the power to selectively prosecute increases the power of the players.

  3. David:

    Well, I do think that there is something to be said for the idea that meds affect people differently, and the effect changes over time. When I first got sick, a Percocet would make me loopy an sleepy; now three are completely ineffective (I've changed meds now), and I'm certain that stuff which doesn't faze me would knock other folks out. Also, maybe it's good that people get to keep some more privacy? It's one thing if the job is long-haul-trucker; it's another if it's retail clerk...

  4. DoctorT:

    This is a rare occurence: I agree with the EEOC. Pain itself can be distracting and can contribute to accidents, but workers in pain aren't required to inform their supervisors. Many medications warn that drowsiness may be a side effect. However, few of those medications cause drowsiness when used appropriately (sleeping pills excepted). For example, a typical person who takes just enough of an opiate drug to control pain is unlikely to be drowsy or inattentive or 'high' at work. It's more likely that a person who achieves good pain control will sleep better and be _less_ drowsy and less distracted by pain during the workday.

  5. Sleepy, getting verrry sleepy:

    The "law pack" could break loose and, like an avalanche, break and smother everything in its path.

    cf. Three Felonies a Day by Harvey A. Silverglate
    Publication Date: September 1, 2009 | ISBN-10: 1594032556 | ISBN-13: 978-1594032554

    "The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In "Three Felonies a Day," Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior."

  6. Andrew_M_Garland:

    Introductory quote for The Cowing of the Medical Profession by Dr. Richard N. Fogoros, at The Covert Rationing Blog.

    Floyd Ferris, a bureaucrat in Atlas Shrugged by Ayn Rand
    === ===
    Did you really think that we want those laws to be observed? We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against.

    The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them.

    One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone?

    But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.
    === ===

  7. Vilmos:

    Offtopic to this post but very ontopic on Coyoteblog

    In an effort to make government more efficient, California scraps kangaroo harvest reports for state’s lawmakers



  8. Ian Random:

    Just move the operation to China and say F!##$ it. The people don't want anything to be made here anyway, just ask a NIMBY/BANANA.

  9. perlhaqr:

    So, if you don't ask now, because it would be impolite, and the worker cuts off their hand on the bandsaw, is the employer off the hook for worker's comp?

    (I already know the answer is no.)

  10. Matt:


    I always get a kick out of sleep aids that list drowsyness as a side affect. If I am taking a sleep aid and it doesn't cause drowsiness, what the hell am I taking it for?

  11. Mark2:

    One of the problems though is that in an effort to alleviate their own lawsuits, drug companies slap warning labels on just about every drug, even if only 1/2% of the test population experienced drowsiness, and we later find those subjects were partying the night before and didn't get enough sleep in the first place.

    So now I am taking medicine for pain in my elbow - probably caused by repetitive stress from the day job anyway, and now the company wants to lay me off, because of a dubious warning on a drug label.

    I don't really know where I stand on this - except to feel sorry for the employee who is caught up in all this.

  12. Matt:

    How much do you want to bet that, as soon as they comply with this judgment, OSHA files a lawsuit against their new, EEOC-compliant policy?

    Frankly, in a manufacturing setting, I'm pretty sympathetic to the original policy...impaired factory workers can get themselves hurt or killed, or worse, can get OTHER workers hurt or killed. It's not like they were firing people just because of their medical conditions...but supervisors needed to know who to keep a special eye on, for their own protection and the protection of innocent others. "Please inform your boss if you're taking any medications that might interfere with the safety of your work" seems like a pretty good balance, actually, between privacy for what is none of the company's business and disclosure of what is.

    Of course, the REAL problem here is that NONE of this ought to be ANYONE's business except the company's and its employees'.

  13. Mark2:

    @Matt, in a sense I agree with you, people could get killed.

    But in this day and age, the drug companies policy is based more on what their insurance companies want, not common sense, and the employer's policy is also based on what their insurers want, rather than common sense. So I do understand the frustration of the common man, just trying to make a living for his family.

    I am not sure what the answer is, but having sensible policies is out of the question.

  14. caseyboy:

    It all boils down to product liability exposure and run away jury awards. Watch a minute TV commercial for some medicine and the first 20 seconds is promotion followed by 40 seconds of warnings and disclosure, taking XXXX could result in blindness, loss of hair, erectile dysfunction, urge to commit suicide, etc. Or how about that warning label on your new coffee maker that says "Warning Do Not Cut Power Cord While Plugged In".

    This is what you get when there are so many attorneys looking for work.

  15. Smock Puppet, 10th Dan Snark Master:

    >>> This is what you get when there are so many attorneys looking for work.


    That's the answer.

    Go around, "You a lawyer?" "Why, Yes!" Pull out the trusty old D&D d10 die, roll it, if it's a zero, whip out the Glock and put one through his/her forehead.

    If everyone did this, the attorney problem would be solved in no time at all.

    Hey, at the very least, they wouldn't be able to advertise their services, which would probably be effective enough. :D

  16. tony:

    Perhaps the workplace policy should read similar to "To help ensure a safe workplace, please let your supervisor know if you are unable or unwilling to perform any task without a risk to yourself or others safety. We will make our best effort to accomidate you with a different task until such time that you are able to perform the original task safely. Your safety is our primary concern. There are many things that can significantly increase the risk of an accident such as lack of rest, illness, medications, missing personal protective equipment, stress, etc. In the unlikely event that the court determines that you caused an accident because you were impared, you will be procecuted to the fullest extent of the law."