America’s Opioid Crisis: What Employers and Their Counsel Need to Know

Pills in a bottle/Credit: coffeehuman/Shutterstock.com

Pills in a bottle/Credit: coffeehuman/Shutterstock.com

Nearly every issue of social change has eventually found its way into the workplace. Work is where, for example, Americans continue to wrestle with issues of discrimination and harassment, with a wide range of personal privacy issues, and with many of the most sensitive aspects of their health care (and how it is paid for). That premise continues to persist, as employers across the country struggle with the work-related aspects of the opioid crisis.

What Is the Opioid Crisis?



Opioids are medicines designed to relieve pain. They are also highly addictive, often induce a sense of euphoria and can trigger dangerous physical and behavioral changes. According to research by the American Psychiatric Association, nearly a third of Americans say they know someone who is or has been addicted to opioids or prescription painkillers.

The costs of opioid addiction are similarly staggering. The National Institutes of Health estimates that opioid addictions cost the United States over $500 billion a year. In Ohio (a state particularly hard hit by the epidemic), authorities estimate the crisis is costing $5.4 million each day in medical and work loss costs across the state.

Opioid Addiction Is a Workplace Issue



In addition to causing widespread misery in society as a whole, opioids are producing specific challenges in the workplace. As just one example, the U.S. Bureau of Labor Statistics reports a 25-percent increase from 2012 to 2017 in the number of workers fatally overdosing on the job. In this respect and myriad others, employers inevitably are being forced to make difficult decisions about handling addicted workers (and, in some cases, their family members), potential accommodations for affected workers, and the role of the workplace in treatment programs. So as the opioid crisis continues, what should employers and their counsel be doing to prepare for and respond to this problem?

Screening for Opioids



It is not difficult to include opioids in a workplace drug testing program, whether pre-employment or otherwise. What can be difficult, however, is determining whether a positive result on that test indicates that the worker or applicant is using an illicit drug or is simply taking an opioid medication as prescribed by a doctor. In order to avoid discriminating against disabled individuals taking prescribed opioids, employers should give those who test positive an opportunity to produce a prescription.

Protections under the Americans with Disabilities Act (ADA) for those who test positive can apply to a broad range of scenarios, particularly for individuals in treatment for addiction. For example, the Equal Employment Opportunity Commission (EEOC) is currently suing a Texas company it says fired a worker who was taking prescribed methadone as part of a drug treatment program, and has pursued cases against other employers for firing workers whose positive results stem from prescribed medications.

ADA Issues: Must Employers 'Reasonably Accommodate' Opioid Addictions?



Under the ADA, the current use of illegal drugs is not a disability, regardless of its health effects. Consequently, an employer is not required to accommodate illegal drug use by allowing workers to use such drugs or be under the influence of them at work. Similarly, employers do not have to accommodate the behavioral changes that can accompany opioid addiction, such as tardiness, absenteeism, lack of concentration, dishonesty,and the like. However, individuals who have successfully completed a supervised drug rehabilitation program (or are currently in one) and are no longer using such drugs are legally protected. Given the public policy benefits of encouraging participation in rehab programs, the EEOC is likely to continue to focus on enforcing protections for workers enrolled in them.

Supervisor Training: More Important Than Ever



Opioids can cause dramatic, negative changes in behavior, including violence. They can also trigger medical crises, such as overdoses. These and other symptoms of addiction can happen anywhere, including in the workplace. As a result, employers should train their managers and supervisors regarding the warning signs of worker addiction (including both physical and behavioral signs) and create systems for reporting any such concerns to human resources or safety personnel.

Narcan: Should You Stock It?



Narcan is a brand name of naloxone, a potentially life-saving treatment for opioid overdoses. It is available without a prescription in most states. Surgeon General Jerome Adams has urged employers to keep a stock of naloxone at their worksites, in much the same way that many employers have defibrillators available for heart attack victims and EpiPens for allergic reactions. If you do decide to add Narcan to your emergency kit, make it part of a broader safety program and train managers in its use.

Leaves of Absence for Treatment—for Workers and Their Families



Workers who qualify for the protections of the Family and Medical Leave Act (FMLA) are entitled to up to three months of job-protected leave for certain types of drug treatment. And just as qualified workers may take job-protected leave for their own treatment, so they may also take leave to care for immediate family members being treated for a “serious health condition,” such as opioid addiction. Given the sheer number of Americans coping with opioid-related issues, however, while the FMLA does provide leave for drug treatment it does not protect workers whose absences are caused by drug abuse.

While both the federal government and many state governments and employer groups are working in various ways to reverse the tide of opioid addiction, there is no end in sight to the problem. (The Ohio Chamber of Commerce has actually provided an opioid “tool kit” for employers.) Consequently, these issues and many others will continue to be important ones for employers and their counsel to plan for proactively. Policy development, careful drug testing practices and supervisor training are among the steps employers should be taking now to protect their workplaces from the many consequences of America’s opioid problem.

Jackie Ford is a partner in the employment law group in the Houston office of Vorys, Sater, Seymour & Pease.