The Workplace Effect
One of the often overlooked areas where the opioid epidemic is creating a crisis is the workplace. The Society for Human Resources Management recently reported that one in five employees is impaired while at work. Goldman Sachs reported that use of opioids has become a key factor in why “prime age” workers, mostly men, are unable or unwilling to find work. The Goldman Sachs report found that opioid abuse is a factor in the slow recovery of the employment economy. In its last three reports to Congress, the Federal Reserve has also listed drug addiction as a cause of stagnant labor markets in the United States. The estimated cost to the economy of this drug crisis is $400 billion per year, most of that in the workplace.
What Employers Are Facing
In practical ways, the opioid crisis is changing the workforce as well. Employers report that employees cannot pass drug tests, limiting the potential workforce and in some areas causing a shortage of employees for available jobs.
Hiring managers report it is harder to identify who will be a good performer in the future, as opioid substance abuse is easy to hide and strikes even individuals who have traditionally been successful employees.
Employers report increased attendance issues from employees who appear to have drug problems, and it is well known that impaired employees are more likely to make errors, including critical safety errors, at work.
Addicted employees are not an employer’s only problem in this crisis. Thirty percent of surveyed employers reported employees missed work due to a family member’s addiction. Employers also report employees with an addicted family member show more signs of stress and distraction at work. Many employers reported feeling helpless to assist employees who were dealing with a family member’s drug problem. See Nat’l Safety Council, How the Prescription Drug Crisis Is Impacting American Employers (2017).
Can Employers Determine Who Is an Addict at Work? Maybe Not
The Americans with Disabilities Act (ADA) prohibits most medical inquiries unless the question is job related and consistent with business necessity. Questions about current illegal drug use are not medical inquiries because illegal drug use is never protected. According to guidelines issued by the Equal Employment Opportunity Commission (EEOC), illegal drug use includes using prescription drugs without a prescription or in a way not medically prescribed.
By contrast, questions about past drug use are generally prohibited, as past drug use and rehabilitation are related to a disability (drug addiction) and thus protected under the ADA. Similarly, questions about medically prescribed opioids being used in accordance with a prescription are a medical inquiry. EEOC guidance is clear that “employers do not have a right to inquire about prescription drug use unless the employee’s inability or impaired ability to perform essential functions will result in a direct threat to public safety.”
The EEOC has elaborated that a police department could require armed officers to report they are taking medications that may affect their ability to use a firearm or perform other essential functions of their job, but a fire department could not require an employee who performed solely administrative duties to report use of medications.
These rules pose challenges for employers attempting to determine whether an employee suffers from a drug problem because it is virtually impossible for an employer to know if an employee’s use is legitimate or not. In addition, the EEOC has routinely challenged employer policies that require all employees to disclose prescription drug use. Recently, the EEOC sued a casino after an applicant was denied a job because of a positive drug test the employee claimed was due to a legal prescription. The EEOC alleged that the casino could not show a need to have all employees disclose all prescription drugs because their jobs did not relate to public safety.
A related issue is the ADA requirement of reasonable accommodation. An employer must provide an accommodation for an employee’s disability unless doing so would impose an undue hardship on the employer. Since the ADA was amended in 2008, the concept of disability has become a broad one. Thus, even for individuals in jobs of public safety, an employer may have an obligation to accommodate legal prescription drug use, such as by temporary reassignment. Further, while an employer can ask an employee’s physician about the employee’s ability to do a job, the employer cannot typically challenge that physician’s assessment.
Recently, the EEOC sued a medical facility after a physician was terminated for use of narcotic pain medication. The physician had disclosed the use, and the physician’s doctor provided a note stating that the narcotic medication was a necessary part of pain treatment and would not impair the physician in performing his job. In bringing the claim, the EEOC alleged that the medical facility’s failure to listen to the physician’s doctor and perform an individual assessment of whether the physician could still perform his job violated the ADA.
What Should Employers Do? Focus on Performance
Employers can and should provide avenues for employees to seek help for opioid addiction, such as employee assistance programs or open-door policies. But sometimes that will not be enough. Supervisors should be educated about the extent of the crisis, the signs of impairment in employees, reasonable accommodation requirements, and the employer’s policies on drug testing and other related issues.
Before taking action against an employee, employers should have a legitimate work-related reason to do so, such as poor performance or attendance. Employers intending to take action against an employee should be sure the employee has not requested any accommodation for legitimate medical use or is not entitled to some other protection (such as time off under intermittent FMLA). Employers are free to coach or discipline employees for legitimate problems at work, even if those problems are related to legal prescription drug use.
This does not mean an employer cannot ask a typically good employee if everything is OK when problems arise, but employers should not assume that an employee’s performance or attendance issues are drug related. Keep the focus on performance.
Helping Employees Get Help for Themselves or Others
There are numerous ways employers can assist employees in getting help for themselves or others. Many employers maintain a zero-tolerance policy requiring dismissal of employees with a drug or alcohol problem, but given the number of people with an opioid addiction, employers are starting to reconsider whether such policies are necessary.
Self-Disclosure protocol. One measure employers can consider is a self-disclosure protocol that allows employees to self-disclose a drug or alcohol problem, take a leave of absence from work to receive treatment, and return to work (though not necessarily in the same position). Typically, such protocols require an employee to agree to monitoring, either for a specific period of time or for the life of their employment. Such monitoring can be a shared cost or one borne by the employee. Many such protocols include a last chance agreement that allows an employer to forgo progressive discipline and appeal and to terminate an employee who violates the drug and alcohol policy or, in some cases, any employer policy. Such policies also typically require an employee to disclose the problem before a particular step in the discipline process is reached (such as before a final written warning or before termination).
Employers often fear that an employee will simply go in and out of rehab, that it will be expensive for the employer, or that an employee will need repeated accommodation. But this is not necessarily the case. Many states require insurance companies to cover drug addiction treatment, and many states’ Medicaid programs also provide such coverage. Newer treatments for opioid addiction, including medication-assisted therapies, have shown higher success rates, particularly for individuals with a prescription drug problem.
Further, studies have shown that employees whose employers support their recovery through treatment and subsequent monitoring are more likely to succeed in rehabilitation than those whose employers terminated their employment. Finally, by some accounts, each employee who recovers from substance abuse disorder saves an employer about $3,200 per year. See Kevin Druley, “Opioids and the Workforce,” Safety and Health (Sept. 24, 2017).
Time out of work. For employers covered by the Family and Medical Leave Act (FMLA), there is an affirmative obligation to advise eligible employees of the right to take leave for drug or alcohol rehabilitation. During this leave, the employer is required to maintain the employee’s employment. FMLA leave may be taken for an employee’s own drug addiction or to care for a loved one with a drug addiction. FMLA leave may also be taken on an intermittent basis, such as to attend follow-up doctor’s appointments or sobriety meetings.
When FMLA does not apply, an employer must still consider making a reasonable accommodation under the ADA. Changes in schedule or brief time off to attend sobriety meetings, counseling sessions, or similar support groups are typical accommodations. Allowing an employee to participate in medication-assisted therapies (such as buprenorphine) are also typical accommodations.
Support for employees with addicted family members. Employers should not underestimate the toll family addiction can take on employees. Employers may want to implement educational programs, such as those that warn about prescription opioid use for high school students undergoing medical treatment or those that give employees information on drug treatment options in the community.
Employers can also allow employees to use paid time off to deal with matters relating to a family member’s addiction, such as court dates and transportation to medical appointments. Employers can even support their employees by allowing sobriety, recovery, or family support groups to use their facilities for meetings.
Employee assistance programs. Employers should also be in touch with their employee assistance program (EAP) providers to understand what resources are available through the EAP that might be used by employees and then provide education to employees on those resources. Seventy percent of all U.S. companies have an EAP. These programs routinely demonstrate a positive return on investment. Mental health programs show one of the highest returns on investment, yet employers often forget to recommend these services to employees in crisis.
Other measures. Employers can also negotiate with health insurance providers to cover alternative treatments such as acupuncture, guided imagery, chiropractic treatment, yoga, hypnosis, and biofeedback. These treatments are often more effective in relieving pain than opioids, yet are often not covered under an employer’s health plan unless the employer seeks such coverage.
For employees on workers’ compensation and disability, many carriers have programs to monitor opioid use by employees and assist employees weaning off opioids. Employers should contact their carriers to understand what measures the carrier takes to protect employees from addiction.
There are a hundred ways Jane’s story might have turned out differently. She might have had alternative pain treatments to minimize her opioid use. She might have had help weaning off opioids through assistance by the disability carrier. She might have gotten help through her employer’s EAP. She might have disclosed a problem in response to a self-disclosure protocol and gone to rehab. We are just beginning to come to terms with the destruction the opioid crisis is creating in the workplace, but proactive employers can take steps now to minimize the damages and help their employees avoid outcomes like Jane’s.
Dawn J. Lanouette is a partner at Hinman, Howard and Kattell, LLP, in Binghamton, New York.