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Posted on August 4, 2017 at 10:07 AM

As the
price of health care and uncertainty about health insurance coverage increases,
employers are taking more of an interest in their employees’ health. Indeed,
this is not a new trend as the United States health insurance system has been
employment-based since its creation. However, this trend may seem more
justifiable when the federal government also takes an interest in employees’
health.  From a public health
perspective, monitoring a society’s health is very important but it must be
balanced against the individual’s privacy interest as well as the harms and
benefits of that monitoring. There is also the issue of who/what is the most
appropriate entity to be doing the monitoring.

On June
27, 2017,
United States Department of Labor announced
will officially be
use of opioid prescriptions by workers
under the
Federal Employees’ Compensation Act, which is the law surrounding the worker’s
compensation system.  The announcement
expressed a safety concern based on overdoses and addiction of opioids in the
midst of our current opioid crisis.

When an
employee files a worker’s compensation claim,
employer must be notified
and the employer
has access to the health records included in that claim
The employer’s access to health records is limited to whatever is included in
the claim and is justified based on the premise that the employer has an
interest in the worker’s compensation claim. However, this new monitoring
system means that an employer will now have access to its employees’ opioid
prescription history, as this is information the U.S. Department of Labor will
be monitoring as part of the worker’s compensation process.

This raises
ethical concerns about invasion of an employee’s privacy for the benefit of
combating the opioid crisis. Yes, we are in a
recognized crisis
when it comes to the amount of
opioid prescriptions and the number of deaths caused by overdoses, but is it
truly appropriate for the U.S. Department of Labor to be the ones monitoring
and questioning the practice of medicine? This announcement goes on further to
state the following requirements to take effect by August 2017:


policy will be administered in two phases, the first of which addresses FECA
claims with newly prescribed opioid use (i.e. claims where an opioid has not
been prescribed within the past 180 days, if ever). This policy for newly
prescribed opioid use will be implemented in August of 2017. After an initial
60 day period of opioid medication, if an injured worker still needs opioid
medication, the treating physician must complete a Certification/Letter of
Medical Necessity (LMN) form in order for OWCP DFEC to authorize any additional
opioid medication. All subsequent prescriptions will require that an LMN be
received and reviewed by claims staff before opioid medication is authorized
and dispensed.

be aware that as part of our new policy to address the safety considerations
noted above, authorizations for opioid drug prescriptions will be limited to a
maximum of 60 days, with initial fills and refills to be issued in no more than
30-day supplies (however physicians are encouraged to prescribe the shortest
duration of opioid medication that will provide appropriate pain relief).
Providers should utilize “partial fills” for schedule II and schedule
III opioids. Please note that no more
than two opioids may be authorized at any given time,
and concurrent
benzodiazepine prescriptions should be avoided to the extent possible.

part of the announcement sounds like the practice of medicine or guidelines a
health agency would issue, in that it is stating what a physician can and can
not prescribe. This medical advice is coming from a federal agency, not a
physician. It is also a federal agency that focuses on employment issues, not
health. It is limiting the amount of opioids that can be prescribed and added
administrative barriers for prescription. Controlled substances already have
restrictions but these restrictions come from agencies such as the FDA or state
agencies that specialized in issues surrounding drugs.
 The U.S. Department of Labor is looking at
this health issue from a perspective that may not be ethically appropriate in
terms of patient care, i.e. focusing too much on the cost.

As for
the privacy concern, employers already get access to health information through
other means besides worker compensation process. For example, some employers
require health screens, especially if the potential employee works in health
care. There has also been an increase in employer-sponsored wellness programs,
which involve the disclosure of one’s weight and heart health.  The concern is when the employer uses that
information for unethical purposes. Society has already seen the trend of
employers choosing not to hire smokers based on their health risk and cost. In
New England Journal of Medicine
reported that
21 states did not have prohibitions against employers from having such
restrictions. This article addressed some of the mixed messages a restrictive
stance sends to the public when it is a health care institution that has such

when does health monitoring go too far and is it ethically appropriate for
one’s employer to have access to this information? Consider the stigma
associated with drug abuse in this case. The more pressing question though is
whether it is appropriate for the U.S. Department of Labor to be acting in the
role of the physician or replacing other agencies that specialize in drugs.

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