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Managers must tread carefully, be aware of ADA and FMLA accommodations
He’s remarkably productive one week, then slacks off the next. She takes frequent and unexplained breaks. He was once the first in the office but now drags in late. Periodically, you hear slurred speech and see an unsteady gait, but never smell alcohol.
Health problems? A rough patch at home? Losing interest in the job?
It might be prescription drug abuse. But pinpointing such abuse, and then confronting employees and deciding how to move forward, can be tricky.
“Drug addicts come in all shapes and sizes these days,” said Tammy Strickling, executive director of Spring Hill, Fla.-based Suncoast Rehabilitation Center. “There are those who honestly got into something they can’t now control, and they want help.”
The mostly commonly abused prescription drugs fall into two classes: benzodiazepines, such as Xanax and Valium; and opioids, such as oxycodone and hydrocodone.
Nearly 2 million people in the United States are addicted to opioid pain relievers, according to the U.S. Centers for Disease Control and Prevention. Drug-treatment admissions for prescription opioids increased sevenfold between 1998 and 2010, leading the CDC to label the problem an epidemic.
Experts say the reasons for more prescription drug addicts are manifold: More people are exposed to prescription painkillers than in previous decades because more people are having elective surgeries; modern culture—geared toward what’s fast and easy—encourages prescriptions for everything from anxiety to depression and from sleeplessness to attention-deficit disorder; and the multibillion-a-year pharmaceutical industry, with help from TV advertising, has created a “need” for its products.
For many users, the drugs offer escape from physical or emotional pain.
"The vast majority of people struggling with addiction have some level of trauma in their history—from child abuse to rape to domestic violence to unresolved grief to military post-traumatic stress disorder,” explained Kent Runyon, executive director of Port Richey, Fla.-based Novus Medical Detox Center.
Spotting the Abuser
People can take prescription drugs responsibly and for long periods to handle chronic conditions, experts said, which means that spying a bottle of Vicodin in someone’s purse needn’t lead to suspicions of abuse.
Instead, someone abusing prescription drugs typically “gets their hands on the pills and is taking far beyond the dosage that a prescribing physician would ever recommend,” Runyon said.
That sort of drug use can have obvious consequences.
“Prescription drug abuse mimics what you see with illicit drugs, and with opioids there are some similarities to what you’d see with heroin,” he said. “We’re looking for things peculiar or unusual for that employee.”
Warning signs include:
Frequent disappearances from work or long unexplained absences, perhaps because the user is nodding off or waiting for a drug-induced haze to lift.
Excessive numbers of sick or personal days. “Chasing the drug can be very time-consuming,” Runyon noted. “They may have to go to multiple clinics and physicians and hospitals, telling their lies to get prescriptions, and that interferes with work.”
Uncharacteristic behavior: A normally prompt employee starts showing up late or not at all. Or a typically outgoing person becomes withdrawn.
Roller-coaster work performance: There may be ups and downs in productivity. Common tasks may take longer than in the past. The worker may suffer memory loss or have difficulty concentrating or recalling instructions.
Difficulty with relationships: Interactions with co-workers may become strained. There may be more frequent flare-ups, arguments or criticism. “If they’re intoxicated and their performance is dropping, that can cause conflict,” Runyon said. “If they’re in withdrawal and suffering symptoms that are very uncomfortable, they’re going to be irritable, easily angered and argumentative.”
Symptoms that may indicate intoxication include slurred or slow speech, tremors, vomiting, sweating, significantly constricted or dilated pupils, and bloodshot or watery eyes.
Symptoms that may indicate withdrawal include restlessness, achiness, anxiety, nausea, agitation, hot and cold chills, fatigue and poor sleep patterns.
"HR managers should be educated concerning the signs of addiction and then be very cognizant of the law as they attempt to address the issues and challenges associated with employee addiction,” advised S. Gordon Hill, an attorney in the litigation and employment law groups at Tampa, Fla.-based Hill Ward Henderson. “HR managers should train [supervisors] to consult with them immediately whenever they are presented with an employee who is having or is suspected of having drug- or alcohol-related issues.”
Approaching an employee about prescription drug abuse is touchy, experts said, because he may have legitimate explanations for his symptoms. Bloodshot, watery eyes may simply be allergies. Sudden irritability and moodiness may reflect midlife sleep disruption. Frequent breaks may be a way to burn off energy. Roller-coaster performance may be characteristic of a highly creative individual.
“Of course, everyone has issues in life, but generally, they solve them and return to normal operation,” Strickling said. “When you have more than one [symptom], it can lead you to believe maybe there’s a situation. If there’s a consistent downward trend of behavior and performance, that could indicate prescription drug abuse.”
But even if an individual’s symptoms become alarming enough to warrant a confrontation, managers shouldn’t expect addicts to come clean, according to experts.
“Employers shouldn’t expect workers to be honest and forthright,” Runyon said. “[Addicts] have for years been lying and manipulating and covering the tracks of their use. They are masters of deceit. The only thing left for managers to do is what we do with any performance issue—stick to the observed behavior and hold them accountable for what we can see, even if we may have suspicions about what’s going on behind the scenes.”
Drug-free-workplace programs make confrontation easier. Such programs typically start with an open letter to employees indicating that evidence of drug abuse is grounds for termination. After the letter, employers provide a 60-day grace period allowing addicts to get clean or alert managers that they need help for addiction, then mandatory drug testing.
“More and more organizations are jumping on the drug-free-workplace bandwagon,” Strickling observed. “If you do suspect someone’s using drugs, you can just send them to the lab.”
Absent drug testing, the performance review may be one of the best vehicles for broaching suspected addiction.
"Make it a safe place,” advised Strickling. The point of the meeting is to put that employee on notice. If the performance problems continue, “you pull them in again.”
She added: “They may not fess up in that workplace interview, but they may go home and talk to a spouse or friend and say, ‘Wow, I messed up. I think I’m getting out of control.’ ”
Consider bringing an HR manager into the performance review, Strickling suggested. “They can ask, ‘How are you?’ ‘What’s happening? We’ve noticed changes in your work and performance.’ They can try to get the person to open up.”
The Next Step
What do managers do with the information if a worker does admit to prescription drug abuse?
Terminating someone addicted to prescription drugs can be legally complicated, Hill said.
The Americans with Disabilities Act (ADA) might protect workers from being fired if they became addicted to pain medications after taking them as prescribed.
According to Hill, the ADA won’t protect workers “currently engaging in the illegal use of drugs,” which could include taking more medication than prescribed. Moreover, employees who are guilty of fraud in obtaining pain medications—through, say, “doctor shopping” or illegal drug trafficking—aren’t protected.
“Employers who are suspicious of employees engaging in fraud, however, should be very cautious about acting on unconfirmed suspicions or suspicions that can’t be proved,” Hill warned.
Referring workers to detox or rehabilitation programs is another route. Here, too, managers need to proceed carefully. Some employees may be able to use the Family and Medical Leave Act (FMLA) to attend such programs, which raises the question of whether they should be guaranteed jobs upon their return.
At Suncoast, patients sometimes take vacation time from work to attend the rehabilitation facility. But because paid time off may not be long enough for the typical rehab program—which can run several weeks to months—some clients take FMLA leave.
Some addicts are able to take FMLA leave without telling their employer about their addiction, Strickling said.
“We’ve had cases where people had accidents and went in for surgeries and got hooked on prescription pills, and they use the FMLA to go to rehab, but it’s not disclosed to the employer,” she said. “Because of confidentiality regulations, a client could use another qualifying issue, such as the original accident or surgery, to protect the substance abuse being made known.”
But an individual is entitled to FMLA leave only if she will remain an employee. In other words, the request for leave doesn’t trump any action a company may take for the worker’s violation of its anti-drug policy.
For instance, if an employee fails a drug test, “then tells the employer, ‘I know, I really have a problem, and I am starting treatment Monday,’ the employer doesn’t need to stop and grant the FMLA leave,” clarified Megan P. Norris, managing director and chairwoman of the labor and employment law group at Detroit-based Miller Canfield. “It can just terminate the employee, provided that’s what it does in comparable situations.”
But if an employee isn’t already being disciplined for violating an anti-drug policy and informs his organization that he needs to take time off for substance-abuse treatment, “that is a legitimate basis for FMLA leave,” she said.
Dana Wilkie is an online editor/manager for SHRM.
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