Employing and Managing People with Addictions

January 12, 2018
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Scope—This article discusses the employment and management of persons with addictions. It presents methods available to human resource professionals for recognizing and dealing with the effects of substance abuse in the workplace, and it addresses the legal issues pertaining to employees with substance abuse problems. The article does not discuss state laws relative to employing persons with addictions, nor does it discuss methods of implementing a drug testing program.

Overview

The article discusses the prevalence and the negative impact of substance abuse in the workplace, warning signs of substance abuse and recognizing such signs exhibited by employees, employers' legal obligations relative to persons with addictions, implementing a substance abuse policy, and particular concerns with prescription drug abuse and legalized marijuana. This article does not address drug and alcohol testing in the workplace.

Background

According to the federal Substance Abuse and Mental Health Services Administration (SAMHSA), 68.9 percent of the estimated 22.4 million illicit drug users, ages 18 or older, are employed full or part time.1 The National Survey on Drug Use and Health found an average of 8.7 percent of full-time workers ages 18 to 64 used alcohol heavily in the past month, 8.6 percent used illicit drugs in the past month, and 9.5 percent  were dependent on or abused alcohol or illicit drugs in the past year. See 2015 National Survey on Drug Use and Health.

Business Case

Assisting even a few workers with substance addiction or abuse can positively affect a business, according to some experts, who claim that savings can be realized from decreased health care claims and absenteeism and increased productivity. Substance abusers do not have to indulge on the job to have a negative impact on the workplace. See Elephant in the Living Room.  

According to retired U.S. Army Gen. Barry R. McCaffrey, former director of the White House Office of National Drug Control Policy, the issue of drugs in the workplace results in $200 billion in lost productivity annually. See Former Drug Czar: Drugs in Workplace Understated Crisis.

HR's Role

Given the strong negative impact in the workplace in terms of safety, productivity and costs, HR professionals can address the issue by implementing a workplace substance abuse policy, by learning the warning signs of possible substance abuse and by guiding employees who exhibit such signs to obtain help.

Many substance abusers are reluctant to seek help because they are in denial. They reject the idea that they have problems or that their addictions are apparent to others. Some substance abusers distrust the assurances of confidentiality by treatment resources, including employee assistance programs (EAPs). Many substance abusers are sensitive to the stigma of being labeled an addict or an alcoholic, and they fear retaliation.

Supervisors—unless they are well trained—often do not take action until they are forced to do so after an employee's failed drug test, accident or embarrassing incident. Therefore, HR leaders have important roles to play in managing employees with substance abuse problems, including developing internal policies, training managers to recognize signs of substance abuse, guiding employees to available resources and taking actions when workplace policies are violated. 

Implementing a substance abuse policy

The U.S. Department of Labor (DOL) recommends that all employers have a written drug-free workplace policy that is shared with all employees and clearly outlines expectations regarding alcohol and drug use.

In most instances, employers have various options for dealing with employees who have alcohol or drug problems. For some employers, however, there may be specific requirements, such as the terms of collective bargaining agreements or the U.S. Department of Transportation's rules for employees in safety-sensitive positions. See What are the requirements for drug testing commercial vehicle operators and employees who drive as part of the job?

In addition, employers that do more than $100,000 of business with the federal government or obtain federal grants in any amount are required to comply with the Drug-Free Workplace Act. At a minimum, these employers must have a drug awareness program. The act's specific requirements include:

  • Publishing a statement to notify employees that it is unlawful to manufacture, distribute, dispense, possess or use a controlled substance and that such action is prohibited in the workplace. The statement must include information to advise employees that violations will have consequences.
  • Requiring employees to notify the organization of any criminal drug convictions while employed at the company. The organization must then notify the federal government of such violations.
  • Certifying to the federal government that the organization has complied with the law.

See Drug and Alcohol Policy.

Recognizing the warning signs

Following are some of the behavioral characteristics that may occur with substance abuse. Such characteristics do not always indicate a substance abuse problem, but they may warrant further investigation. Supervisors and managers should be trained to spot warning signs such as these:

  • Absenteeism, particularly absences without notification, or excessive use of sick days.
  • Frequent disappearances from the worksite; long, unexplained absences; improbable excuses.
  • Unreliability in keeping appointments and meeting deadlines.
  • Work performance that alternates between periods of high and low productivity.
  • Increase in accidents on and off the job.
  • Mistakes attributable to inattention, poor judgment or bad decisions.
  • Confusion or difficulty concentrating or recalling details and instructions.
  • Increases in the effort and time required for ordinary tasks.
  • Problems with interpersonal relations with co-workers.
  • Shirking of responsibility for errors or oversights.
  • Progressive deterioration in personal appearance and hygiene.
  • Increasing personal and professional isolation.
  • Signs of morning-after hangovers.
  • Physical signs such as exhaustion, hyperactivity, dilated pupils, slurred speech or an unsteady walk.

See How to Document Reasonable Suspicion and Prescription Drug Abuse: Spotting the Addicted Employee.

Confronting employees

Employers must be cautious when confronting an employee about suspected drug or alcohol addiction. There may be legitimate reasons for the symptoms, such as bloodshot eyes due to allergies or absenteeism due to a legitimate health reason.

Absent drug testing, performance discussions may be one of the best vehicles for broaching suspected addiction. Addressing performance or conduct concerns directly can open the door for more candid discussions. Employers may inform an employee that they have noticed particular behaviors and ask for an explanation, for example, "It appears that you are very distracted lately, and your performance is suffering. You missed last week's deadline, and your co-workers are reporting that your speech is slurred and your eyes bloodshot. Is there something going on that we can help with?"

It is not uncommon for an addict to deny substance abuse; however, if legitimate reasons exist for the observed symptoms, having a performance discussion with employees may allow them the opportunity to share this information. They may respond that they are dealing with stressful family issues or that they have recently been diagnosed with a health condition and are having trouble coping with the issue and adjusting to new medications. In these circumstances, an employer can start discussions about reasonable accommodations or leave options that are available.

Alternatively, an employee may deny any issues, and in this case an employer should proceed with normal actions to address an employee who is underperforming or displaying inappropriate behavior in the workplace.

The employer should let the employee know the expectations going forward and the potential consequences if the issues continue. For example, "Our dress code requires a neat and professional appearance. We expect that you will improve your personal appearance and grooming by ensuring your clothes are clean and wrinkle-free and you come to work neatly groomed."

Continued performance and conduct issues should be addressed according to internal disciplinary policies and procedures.

Considering possible actions

An employer's response to confirmed substance abuse should generally take into account the company's overall experience with the employee, the impact of the substance abuse on the company and the workplace, and how others have been treated in similar circumstances.

For example, a supervisor or someone else in an appropriate position may refer employees with substance abuse problems to an EAP based on observed and documented behaviors and performance problems and/or on employee admission of addiction.

Some employers may offer help to employees—perhaps time off to seek treatment and a return-to-work agreement—in lieu of termination. Time off to seek treatment for addiction may be covered by the Family and Medical Leave Act or state law. Of course, whether to accept help is the employee's decision. See Leave for Treatment of Substance Abuse and Drug Testing: Last Chance Agreement.

Employers may also choose a no-tolerance policy and take disciplinary action—up to and including termination—based on job performance problems that may be the result of an employee's alcohol or drug abuse. However, it is critical to document such problems and any actions taken. An employer has no obligation to excuse drug or alcohol use on the job or a violation of a drug-free workplace policy.

Legal Issues

An employer's actions regarding employees who use or abuse alcohol or who are recovering from substance abuse may be subject to certain federal laws or regulations. Among them is the Americans with Disabilities Act of 1990 (ADA).

Title I of the ADA protects qualified individuals with disabilities from employment discrimination. According to the EEOC Technical Assistance Manual: Title I of the ADA, "A person who currently uses alcohol is not automatically denied protection simply because of the alcohol use. An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not 'qualified.' "2 See Jury in EEOC Suit Says Old Dominion Freight Line Must Pay Former Driver $119,612 for Disability Bias and Drunk at Work: What HR Can Do About Employees Drinking on the Job.

Current illegal drug use is never protected under the ADA, but recovering addicts are protected. According to the EEOC's Technical Assistance Manual, "Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction."3 However, a drug test that shows that the employee is using an illegal substance qualifies as "using drugs illegally" and bars the employee from ADA protections. See Are employees undergoing treatment for drug and alcohol addictions covered under the ADA?

The ADA provides that an employer may prohibit the use of drugs and alcohol in the workplace and require that employees not be under the influence of alcohol or drugs while at work. Employers can hold employees who are alcoholics or drug addicts to the same performance standards that apply to other employees.   

See:

10 Steps for Avoiding Legal Problems

Drug-Free Program May Have Gone Too Far

The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities

State laws may also dictate employer policies and procedures related to employees addicted to drug and alcohol. For example, see What Employers Need to Know About West Virginia's New Drug and Alcohol Law and Under California law, are employers required to provide leave time for employees to attend a drug or alcohol rehabilitation program?

Accommodations

The Job Accommodation Network (JAN), a service of the DOL's Office of Disability Employment Policy, has compiled a considerable amount of information on various methods of accommodating employees with substance-abuse problems. For example, the JAN page on Alcoholism suggests questions to consider when developing accommodations for employees recovering from alcohol abuse. Among the questions:

  • What limitations is the employee experiencing?
  • How do these limitations affect the employee and the employee's job performance?
  • What specific job tasks are problematic as a result of these limitations?
  • What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
  • Has the employee been consulted regarding possible accommodations?
  • Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
  • Do supervisory personnel and employees need training?

The guide also offers various accommodation ideas, such as frequent breaks and flexible scheduling to enable the employee to attend counseling.

Similarly, JAN has developed guidance on accommodating employees recovering from drug addiction, titled Accommodation and Compliance Series: Employees with Drug Addiction. Accommodation ideas include a self-paced workload, workplace supports and time off to attend counseling.

Prescription Drug Use

Because some prescription medications can affect an employee's ability to work safely, employers may have a legitimate interest in addressing them in their policies regarding a drug-free workplace. However, employers cannot discriminate in their hiring and firing practices based on an individual's use of prescription medications for legitimate medical purposes. Such discrimination could be a violation of the ADA.

The ADA also prohibits an employer from asking disability-related questions unless they are job-related and consistent with business necessity. Therefore, employers should not have a blanket policy requiring all employees to disclose prescription drug use. See Can an employer ask employees what type of medication they are taking and why?

The Workers Compensation Research Institute (WCRI) study of workers' compensation claims found that almost one in 12 injured workers who were prescribed powerful painkillers such as Oxycontin and Vicodin were still using the prescription drugs three to six months later, potentially leading to addiction and more work loss.4 See Mich.: Rules Limit Comp Claimants' Use of Painkillers.

Employers can maintain a safe work environment and combat prescription drug abuse by taking the following measures:

  • Revise the company's drug policy to address prescription drug use in addition to illegal drugs.
  • Educate employees about the dangers of prescription painkiller use and misuse.
  • Train supervisors on the potential signs of drug impairment and internal drug free workplace policies.
  • Promote the employee assistance program.
  • Include prescription medications in their drug-testing program.
  • Partner with their health care and workers' compensation insurance providers to prevent and manage opioid abuse.

See:

Combatting the Prescription Drug Crisis

As Opioid Epidemic Rages, Worksite Policies Overlook Prescribed Drugs

Prescription Drug Abuse Quiz

Report: Many Injured Workers Overuse Narcotics.

Medical and Recreational Marijuana Use

Employers are increasingly facing the difficult question of how to handle employees who have valid state prescriptions for the use of medical marijuana or who live and/or work in states that have legalized recreational marijuana.

Under the ADA, an employer may not discriminate against a "qualified individual with a disability" for obtaining treatment for that disability or for the side effects of that treatment. However, the ADA expressly provides that an employer may a) prohibit the "illegal use of drugs" at the workplace by all employees and b) require that employees not be engaging in the "illegal use of drugs" in the workplace.5 The phrase "illegal use of drugs" means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act. The term thus includes the use of marijuana for any purpose. For that reason, the ADA should not act as a bar to an employer's discipline of an employee who is using medical marijuana.

State laws provide employees varying levels of protection. In Colorado, for example, the right to use medical marijuana is enshrined in the state's constitution. Further, Colorado, like several other states, has a "lawful off-duty statute" that prohibits employers from disciplining employees for off-duty legal conduct. Michigan prohibits any business from denying "any right or privilege" from a medical marijuana user.6 Arizona, Delaware and Minnesota prohibit employers from terminating employees because of an employee's status as a medical marijuana cardholder or as a result of a positive drug test for marijuana. However, even in states that provide some level of employee protection for medical marijuana use, there is no protection for the employee who shows up to work under the influence.

See:

More States Legalize Recreational and Medical Marijuana

How Can Multistate Employers Develop Solid Drug-Testing Policies?

Should Marijuana Be Removed from Pre-Employment Drug Screens?

Employers should consult with legal counsel when drafting drug-free workplace policies to ensure compliance with federal, state and local laws.

Templates and Tools

Sample forms

Drug Testing: Applicant Consent

Drug Testing: General Consent

Drug Testing: Last Chance Agreement

Drug Testing: Reasonable Suspicion Documentation

Sample policies

Drug Testing: Drug and Alcohol Policy

Drug Testing: Random Drug Testing Policy

Drug Testing: Pre-Employment Drug Testing Policy

Drug Testing: Post-Accident Drug Testing Policy

Endnotes

1Substance Abuse and Mental Health Services Administration. (2014, March). National survey on drug use and health: 2013 dress rehearsal final report. Retrieved from https://www.samhsa.gov/data/sites/default/files/NSDUH-DressRehearsal-2013/NSDUH-DressRehearsal-2013.pdf

2Job Accommodation Network. (1992). Technical assistance manual: Title I of the ADA. Retrieved from https://askjan.org/links/ADAtam1.html

3Ibid.

4Wang, D. (2016). Longer-term use of opioids (3rd ed.). Workers Compensation Research Institute. Retrieved from https://www.wcrinet.org/reports/longer-term-use-of-opioids-3rd-edition

5U.S. Commission on Civil Rights. (2000, October). Substance abuse under the ADA (Chapter 4). In Sharing the dream: Is the ADA accommodating all? Retrieved from http://www.usccr.gov/pubs/ada/ch4.htm

6Legislative Council, State of Michigan. (2015). Michigan Medical Marijuana Act. Retrieved from http://www.legislature.mi.gov/(S(wrigx1uwc2xdzntw4o4ajqmh))/mileg.aspx?page=GetObject&objectname=mcl-333-26424

 



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