June 13, 2019
By Rebecca Batisto
All eyes are on the first major opioid trial in the US. Oklahoma is suing the pharma company Johnson & Johnson, claiming that Johnson & Johnson is the “kingpin behind the public health emergency.” More than 1500 similar lawsuits are happening across the country, and the outcome of this trial is going to set some precedents. It could also indicate to what degree Johnson & Johnson and other drug companies will be held responsible in other lawsuits still pending.
In this particular case, prosecutors are saying Johnson & Johnson contributed to the deadly opioid crisis in three ways: By owning companies that produce and refine opium. By creating its own opioid products, including the Fentanyl pain patch. By practicing deceptive marketing, and marketing opioids to children in order to normalize the drug.
Opioid prescriptions are written lawfully every day by legitimate doctors to help patients find relief from their pain from arthritis, injuries, and cancer. But they can be very addictive. More than 130 Americans die every day from opioid overdoses.
University of Kentucky law professor Richard Ausness points out that producing opioids is “regulated and approved by the Food and Drug Administration…they are useful products, so this is not a situation where the product is defective in some way.” Likewise, a North Dakota judge questioned the idea of blaming a company that makes a legal product for opioid-related deaths. Judge James Hill said about pharmaceutical company Purdue, it “cannot control how doctors prescribe its products and it certainly cannot control how patients use and respond to its products regardless of any warning or instruction Purdue may give.”
The National Safety Council has found that when opioids are prescribed in workers’ compensation cases, use beyond the acute phase can impair function, be a barrier to recovery, and actually increase the person’s experience of pain.
The harmful impact of prescription painkillers can linger long after an employee has returned to the job. A person on painkillers for three months may already be dependent and developing severe tolerance. Long before this high-profile trial, appellate courts in four states have held that employers and insurers are financially accountable for overdose deaths tied to injured workers.
Opioids are both a health and safety issue in the workplace. On a construction site or any other setting where heavy equipment is used and safety is of the utmost importance, it’s crucial to keep a drug-free workplace. Drug testing is often performed during the onboarding process, and can also take place randomly at any time after a person is hired. Challenges may emerge when you need to determine what constitutes “impairment,” especially in safety-sensitive positions and when the employee is taking a legitimately prescribed drug. The American Disabilities Act (ADA) may protect an employee’s use of prescription drugs to treat a disability. However, prescription drug abuse is considered illegal drug use. It can be a fine line to walk, and it’s crucial your managers are trained in how to handle different types of cases involving prescription painkillers, but knowing where you stand is always best when it comes to health and safety in the workplace.
It may be an excellent time to re-evaluate your workplace drug policy. Consult with your company’s legal team and human resources to ensure you include all state and federal guidelines.
You’ll also want to evaluate your workers’ compensation program. To address risks associated with opioid dependence and abuse, providers and claims managers need programs that require conservative use of prescription pain medication. If you have questions about how this will affect your workers’ comp claims, give us a call at Normandy Insurance. We look forward to helping our clients navigate the ever-changing waters of worker’s compensation insurance.