Limits of a pharmacy technician’s objections

On the Docket

Pharmacists rely on perspectives about patients provided by pharmacy technicians. Ultimately, the decision of how to use this information rests with the pharmacist. A recent California case reviewed actions of a pharmacy technician who disagreed with decisions by pharmacists to continue dispensing opioid analgesics under circumstances the technician considered inappropriate.

Background

According to the court, the technician believed that the pharmacy “was filling too many prescriptions for narcotics.” The technician questioned the pharmacy manager about the volume of opioid prescriptions, but “his questions and concern were dismissed.” During the pharmacy manager’s vacation, a patient requested a refill of an opioid prescription too early, and the pharmacist on duty refused the medication. The pharmacist reported the incident to DEA.

A DEA investigator visited the pharmacy, found no basis for further action, and recommended that the pharmacist contact the state’s controlled-substance agency. The pharmacist decided not to contact the state agency, so the technician made the contact. There is no evidence that the state agency took any action.

Immediately following this incident, the technician requested a transfer out of the pharmacy department, stating he “could no longer be part of the [pharmacy] because of its prescription-filling practices.” About a month after his transfer, the former technician wrote a letter to management detailing “the reasons why he made a decision to remove himself from his position as pharmacy technician.”

A manager met with the former technician, reviewed the concerns expressed in the letter line by line, and dismissed all concerns raised in the letter. In response, the former technician warned that if the pharmacy’s practices did not change, he would send his letter to “Washington or the narcotics board.”

The former technician’s new supervisor expressed concern, stating, “I have not been able to get [the former technician] to buy off that we are not doing anything illegal, and it’s the pharmacist’s call.” This supervisor also commented to the former technician, “Who made you the police officer of the pharmacy?”

About 6 months later, the former technician wore a T-shirt to work during non–store hours, with a picture of a crying doctor in jail and the words “justice” and “pills kill.” He explained that this was his new “work shirt.” The former technician was told not to wear this shirt to work, as it violated a company policy against clothing that contains “political or controversial subject matter.”

The former technician wore the shirt again and was disciplined. He wrote on his disciplinary paperwork, “When [the pharmacy] chooses to publicly address curbing the nationwide epidemic of prescription drug abuse, I will stop wearing my shirts.” The former technician continued to wear the shirts and was eventually fired for insubordination.

Rationale

The former technician sued the former employer, alleging that he was terminated for engaging in protected activity. A jury found in favor of the former employer, and the former technician filed a motion for a new trial.

In denying the motion for a new trial, the judge noted the jury’s conclusion that by wearing the T-shirt, the former technician had “intentionally caused disruption amongst the workplace.” The jury found that the former technician’s “choice to wear a deliberately controversial T-shirt was unprotected activity.”

Discussion

Pharmacy technicians can provide valuable perspectives on patients and their behaviors. Observations by technicians can be particularly useful when pharmacists screen controlled-substance prescriptions. The technician’s role is to inform the pharmacist. The pharmacist’s role is to take the technician’s observations seriously and then make a professional decision about each prescription.

Based on: Thomas v Costco, 2014 U.S.Dist. LEXIS 109636 (C.D. California, August 7, 2014)