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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, the United States Department of Labor announced it will officially be monitoring 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, the 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 nationally 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:

 

This 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.

Please 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.

This 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 2013, the 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 restrictions.

But 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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