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What Employers Can Do About the Opioid Crisis

HR Column
Periodically we use a fictitious legal team at Sunderland Manufacturing to illustrate challenges real companies face. Sunderland is one of the 70 percent of US employers that is impacted by the opioid crisis. Some of its employees were among the 250,000 people who overdosed in the past decade. On April 5, the US Surgeon General issued a national advisory urging more Americans to use the drug naloxone, which can save people overdosing on opioids.

“C an I fire him?” Issac Matombo, the human resources business partner, said looking hopeful. Jordan Powers, Sunderland Manufacturing’s general counsel, scowled.

“Isaac, according to my notes, this production worker was injured when a forklift ran over his foot.”

“That’s right,” Isaac Matombo said.

“He was out for months, but returned to full-time work.” Jordan said.

Isaac nodded.

“Since then he’s had performance problems, increased absences, drowsiness. He’s temperamental…”

“His performance has plummeted!” Isaac interrupted. “We followed our progressive discipline protocol. When he received a final written warning, he confessed he’s been struggling with an opioid addcition and asked for accommodation.” Isaac threw up his arms in triumph, “I knew it! I’ve been saying all along it’s the drugs!”

Jordan’s eyes narrowed. “He asked for an accommodation for his addiction?”

Isaac was dismissive, “A ploy to keep his job. I’m ready to terminate.” The hopeful gleam returned to his eye. “Can I?”

Different countries, different approaches

Iceland, El Salvador, Sweden, and Australia have the highest overdose and drug-related death rates in the world after the United States. Iceland established three large non-governmental organizations (NGOs) to offer inpatient, outpatient, or residential treatments. The NGOs are funded by the Icelandic government and public donations and grants. Employers are among patient referral sources, with inpatient treatment programs lasting from 10 days to 12 months. El Salvador is struggling to develop effective, high-quality treatment programs. Strict penalties for drug use in Sweden are considered a possible cause of the country’s high overdose rates, dissuading drug users from seeking recovery assistance.

Intersection of opioid abuse and the ADA

The Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against qualified, disabled applicants and employees. The ADA considers a “disability” an impairment that substantially limits a qualified individual’s major life activities. A “qualified individual” is one who can satisfy the requisite skills, experience, education, and other job-related requirements and perform a job’s “essential functions.”

If a “qualified” employee with a “disability” can perform a job’s “essential functions” with a “reasonable accommodation,” the employer must accommodate, provided that it does not present an “undue hardship” to the employer. This inquiry is conducted on a case-by-case basis. Drug use, dependency, and recovery may qualify as a “disability.”

In our fictitious case at Sunderland, the employee request for accommodation triggered the ADA’s reasonable accommodation analysis. Potential accommodations could include:

  • Mandatory counseling;
  • Enrollment in the Employee Assistance Program (EAP);
  • Flexible schedule to attend counseling, treatment, or support group meetings; or,
  • Leave to enter an in-patient program.

Undue hardship considerations
The employer can decline an accommodation that causes undue hardship to the organization. The ADA allows employers to consider:

  • The nature and net cost of the accommodation;
  • The effect on the facility’s expenses and resources, including the impact on the ability of other employees to perform their duties;
  • The overall size of the business (e.g., number of employees, number, type, and location of the facilities); and,
  • The composition, structure, and functions of the workforce, as well as the geographic separateness and administrative or fiscal relationship of the facility to the covered entity.

Direct threat considerations

“Direct threat” factors the employer can consider include: (a) duration of the risk; (b) nature and severity of the potential harm; (c) likelihood that the potential harm will occur; and (d) imminence of the potential harm. If the employee’s condition poses a “direct threat” to themselves, other employees, or the public, the employer can take various steps, including:

  • Screening out a candidate from an employment opportunity;
  • Disciplining the employee; or,
  • Temporarily suspending the employee with pay to undergo a fitness for duty evaluation to determine whether the employee is a direct threat to themselves or others.

Drug testing

Drug testing can be effective in sniffing out illegal drug use and ensuring workplace safety. However, it is not always effective when the opioid user has a legal prescription or when the individual is not yet an opioid user. Similarly, random drug testing and testing where reasonable suspicion exists also can be effective, but reasonable suspicion of opioid use can be difficult to identify. Also, a standard five-panel drug test may not include opioid detection.

Components of standard five-panel drug test:
  • Cannabinoids (e.g., marijuana, THC);
  • Phencyclidine (e.g., PCP);
  • Opiates (e.g., codeine, morphine, heroin);
  • Amphetamines (e.g., Adderall, Ritalin, etc.) and methamphetamine and,
  • Cocaine.
Test may not include:
  • Synthetic opioids (e.g., oxycodone, hydrocodone, Dilaudid, fentanyl, etc.); and,
  • Barbiturates (e.g., Seconal, phenobarbital, etc.).

Practice tips

1. Review drug policies.
Policies should reflect federal and state guidelines and specify prohibited substances, including opioids absent prescriptions.

2. Educate employees.
Encourage employees to discuss effects and risks of opioids and prescription medications with their physician.

3. Train leadership.
Educate leadership on detection and proper steps to take if they think an employee is abusing opioids.

4. Offer Employee Assistance Programs.
Employers can require counseling when an employee tests positive or admits substance abuse. Employer-sponsored treatment can be a cost-effective solution to workplace addiction.

5. Implement drug testing protocols.
These programs can reduce workplace injuries and errors. Labs certified by the applicable health department are preferable. Understand what substances are screened and expand the drug testing panel to include opioids. Also have consistent rules around when testing is warranted, such as candidate screening, pre-duty, periodic, random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.

6. Check insurance.
Find out what steps your health insurance and pharmacy benefit providers are taking to address this crisis.

About the Author

Spiwe L. JeffersonSpiwe L. Jefferson is general counsel of ChristLight Productions Ltd., LLC, Patron Fellow of the American Bar Foundation, and board secretary and legal advisor to The BrandLab. She is a member of the ACC employment and labor, law department management, and litigation sections.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.