Interact Sensitively with Employees Addicted to Opioids

Allen Smith, J.D. By Allen Smith, J.D. October 31, 2018
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Employees who abuse opioids often are given a second chance by their employers. But well-meaning employers could wind up being sued for discriminating against those workers in violation of the Americans with Disabilities Act (ADA) if they don't handle the situation very carefully.

Opioid addiction has been rampant in the U.S. for some time. More than three out of five drug overdose deaths last year involved an opioid, and overdoses rose 70 percent in the 12 months ending September 2017, according to the Centers for Disease Control and Prevention.

So what can HR professionals do about it? If a worker admits to the problem, the path is fairly clear. But if the employer merely suspects that an employee is addicted to prescription pain relievers but has no real proof, the employee should be treated like any other employee who is having attendance or performance issues, said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

An employer should never accuse someone of having an addiction, because if the employer is wrong, the accusation could lead to an ADA claim, Russo cautioned. Although current drug use isn't considered an ADA disability, a history of drug addiction is. Moreover, someone using prescription drugs might have an underlying condition covered by the ADA. 

[SHRM members-only toolkit: Accommodating Employees' Disabilities]


Statistics on opioid use


If an employee admits to opioid abuse, or the problem is discovered through drug testing, the employer should discuss it with the employee to determine if he or she needs a reasonable accommodation, such as leave to obtain treatment, Russo said. The illegal use of drugs need not be tolerated at work, she added.

Reasonably accommodate the employee so long as there's no direct threat to the health and safety of himself or herself, or others, recommended Nancy Delogu, an attorney with Littler in Washington, D.C.

Drug Testing

The Equal Employment Opportunity Commission has opined that employers may ask about an employee's use of prescribed medicine or conduct a drug test to determine such use only if the employer has reasonable suspicion that its use will interfere with the employee's ability to perform the job's essential functions or will pose a direct threat.

Many employers are expanding their drug-testing panels to include semisynthetic opioids such as hydrocodone, hydromorphone, oxycodone and oxymorphone, in addition to traditional opioids such as heroin, codeine and morphine, Russo said. This is lawful in most states as long as the employer does not take adverse employment actions when drugs are used legally, she noted, which is why an employer should use a medical review officer in the drug-testing process. If the medical review officer concludes that the positive test result is the result of lawful drug use, the result is reported to the employer as negative.

Sometimes an employer will say it has reasonable suspicion that the employee came to work impaired by drug use and is considering a mandatory drug test. At that point, some employees will say the drug test would be positive and the test consequently is not necessary.

Discussions with Employees

If there are performance problems and the employee has admitted to opioid addiction, some employers tell employees that they can remain employed so long as they go through inpatient treatment. Delogu discourages that approach. Employers aren't workers' doctors, so they shouldn't be deciding whether someone needs a treatment program, she explained.

But if someone voluntarily seeks to enter an addiction-recovery program, that person may have legal protections under state law, said Wendy Lane, an attorney with Greenberg Glusker in Los Angeles. For example, California has a law requiring employers with 25 or more employees to reasonably accommodate alcohol and drug rehabilitation.

Delogu recommended that employers that believe there is a problem with substance abuse ask if the addicted employee needs assistance from the employee assistance program.

An employer can require that an employee who has violated a policy be evaluated by a substance abuse professional and complete treatment prescribed for them, without dictating what that treatment will be, she said. The employer may choose to forgo disciplinary action if an employee agrees to these terms and signs an agreement to this effect. The employer then would not have to be informed about the person's decided course of treatment, whether inpatient, outpatient or no treatment at all, she said. The employee typically will be subjected to follow-up drug testing to make sure he or she hasn't resumed the use of illegal drugs.

Many employers are willing to give employees with performance problems resulting from opioid addiction a second chance, she noted.

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