LAS VEGAS — Working with, accommodating and supporting employees who struggle with alcoholism, substance abuse or mental health issues can be difficult due to the sensitive nature of the situation and the numerous employment laws that may be implicated.
Lara de Leon, an attorney with Ogletree Deakins based in Costa Mesa, Calif., presented June 24 at the Society for Human Resource Management 2019 Annual Conference & Exposition on legal protections for individuals dealing with addiction and mental health conditions, plus ways to resolve these issues in a compliant fashion: reasonable accommodations, drug testing and last-chance agreements.
Addiction and mental health issues can lead to absenteeism, poor performance, on-the-job injuries or workplace violence, de Leon said. The following statistics illustrate the breadth of concerns for employers:
- Approximately 70 percent of Americans use at least one prescription drug and 50 percent use at least two, de Leon said. One in 3 uses a prescription opioid.
- Over 70 percent of U.S. workers live in states permitting at least some marijuana use. Products made with cannabidiol, an active ingredient in cannabis, are showing up in the workplace.
- Nearly 14 million Americans (1 in every 13 adults) abuse alcohol or are alcoholics. The cost to employers is estimated to be between $33 billion and $68 billion per year and is due largely to absences, lost productivity, and injuries and accidents.
- In 2018, roughly 1 in 4 adults in the U.S. experienced a mental health disorder. Mental health is the No. 1 cause of disability in the U.S., and up to 40 percent of sick leave taken is attributable to mental health reasons.
Applicable Workplace Laws
A variety of federal laws apply to substance abuse and mental health conditions in the workplace:
- The Controlled Substances Act clearly states that marijuana is an illegal substance, notwithstanding the growing number of states that have legalized it for medicinal and recreational use.
- The Occupational Safety and Health Act does not offer any directive on drug-free workplace policies, but employers have a responsibility to provide a safe workplace under its general duty clause, de Leon explained. "If an employer turns a blind eye to drug use in the workplace, it can be found to have violated the law," she said. "But there hasn't been very much enforcement of this."
- The Drug-Free Workplace Act applies to federal contractors. It does not require drug testing of candidates or employees, nor does it require employers to fire workers for testing positive for illegal drugs. But employers must make continuous good-faith efforts to maintain a drug-free workplace, which usually means having a policy and a mechanism for drug testing.
- The Americans with Disabilities Act (ADA) prohibits discrimination based on a current, past or perceived disability. The law also covers association with an individual with a disability. "You can't fire someone because his or her child has leukemia and you're afraid that your health costs will go up," de Leon said.
The ADA also regulates medical examinations and inquiries. "Employers have the right to test for illegal drugs," de Leon said. "But issues can arise when false positives or positive hits from prescribed medication are triggered."
The ADA requires reasonable accommodations for disabilities. "When alcoholism or mental health issues rise to the level of a disability, employers have an obligation to meet with the employee and try to come up with a workplace accommodation," she said.
What constitutes a disability under the ADA is fact-specific and individualized. "There are very few absolute disabilities," she said. "The Equal Employment Opportunity Commission has identified several mental illnesses that it considers disabilities. There's no question about it, and you must accommodate individuals with these conditions."
A few of those include bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, schizophrenia and major depressive disorder.
Past drug addiction of any kind is a covered disability as are alcoholism and addiction to lawfully used medications. People currently using drugs illegally are not protected, nor are those who drink alcohol but who have not been diagnosed an alcoholic.
Attempts to address drug or alcohol problems or to proactively address mental health concerns may give rise to perceived disability claims. Things get tricky when someone is not technically disabled but claims that the employer regards or perceives him or her as disabled, de Leon said. "Employers must be careful not to assume an employee cannot do the job based on a perceived disability." She gave the example of assuming someone is an alcoholic because he or she was arrested for drinking under the influence.
Another thing to remember is that employers should ask for medical documentation only if the medical condition impacts the person's ability to do the job.
Employers are prohibited from asking questions that are likely to reveal the existence of a disability before making a job offer. "Don't ask job candidates if they do drugs, or have they ever been to rehab, or how much do they drink," de Leon said. After a positive drug test, employers may ask about current legal drug use that may explain the test result.
Common accommodations for alcohol or substance abuse include a modified work schedule and a leave of absence for rehabilitation and to attend support group meetings.
"Remember, you don't have to accept disruptive or unsafe behavior—this is more about how can you accommodate employees with addictions who are seeking help and might need time off to get better," de Leon said.
Typical accommodations for mental health issues include flexible scheduling or modified break schedules, special break locations, removal of environmental triggers, and the use of support animals, she said.
De Leon recommends using last-chance agreements as a final effort to retain employees while at the same time protecting the company. Last-chance agreements are made between an employer and an employee and set out terms the worker must comply with to keep the job.
"It's an alternative to risky termination decisions and does not alter the at-will nature of the relationship," she said.