Employee health and medication use are grey, tricky areas for employers. Employee medical conditions are protected under health care privacy laws, but the effects of their illness, particularly side effects of their medications, are a concern for your business and liability.
One of the biggest concerns is the ongoing opioid epidemic that is gripping the country. Opioids are a prescribed narcotic painkiller with potentially impairing side effects and a high risk of misuse or addiction.
Opioids, both those prescribed legally and those obtained illegally, take a huge health toll and constitute a significant economic burden, with the US Centers for Disease Control & Prevention suggesting that prescription opioid misuse costs the US a staggering $78.5 billion (yep, with a “b”) each year in health care, lost productivity, addiction treatment and criminal trials.
Digging a little deeper, statistics from the National Institute of Drug Abuse (NIDA) suggest that between 21 and 29 percent of patients prescribed opioids for chronic pain end up misusing them, with between 8 and 12 percent going on to develop an opioid use disorder. Further, use of prescription opioids is considered a gateway to harder drugs, with 4 to 6 percent of opioid users transitioning to heroin. Opioids are responsible for 115 deaths each day in the United States.
Looking specifically at the impact on the workplace, employers can expect the opioid crisis to increase the number of workplace accidents and safety issues since those under the influence are more prone to accidents, while employers can look forward to footing the bill for $200 billion in lost productivity annually, as well as an uptick in healthcare costs as insurers struggle to cover the cost of opioid dependence, which climbed from $72 million in 2011 to a whopping $722 million in 2015…and it’s still climbing. Beyond the financial component, drug use in the workplace is also associated with higher turnover and reduced employee morale.
So what can you, as an employer, do?
Are Opioids Legal?
Opioids are a tricky territory because those of the prescription variety is very much legal. However, when you break it down, opioids are only legal if they are prescribed to a specific person by a medical professional. If a person is taking someone else’s legally prescribed opioids, it’s illegal. The legality of the issue is what you should use to guide any and all next steps.
Ok, So It’s Legal… Now What?
When the drugs are legal, you can fall back on the American’s with Disabilities Act, which provides protections to workers who use over-the-counter or prescription drugs to treat a disability. In cases such as these, employees should come to their employers if they have concerns that their medication may impair their job performance. Therefore, managers need to be trained on how to engage with workers and identify reasonable accommodations that are fair to the business, fair to the employee and comply with the tenants of the ADA. In the event that the prescription in question may pose a safety risk, your company is authorized to conduct a “direct threat” analysis and use the outcomes of that review to guide their next steps.
What If I Suspect It’s Illegal Drug Use?
When an employee is taking drugs illegally, your first port of call must always be to check your employee handbook for your company’s drug policy. Ideally, a good drug policy should include:
- Statement of Purpose: Explain that maintaining a drug-free workplace is important for the health and safety of the company, which is why you have enacted the policy.
- Scope: Who is included in these rules? If you want to avoid a hefty lawsuit, it should include everyone.
- Notice of Employee Assistance: Right up front, you should state that the company will be supportive of any employee that chooses to pursue treatment and will take steps to be as supportive as possible. Measures may include offering an Employee Assistance Program that includes counseling, allowing them to use PTO or take an unpaid leave of absence to seek treatment and work through their problem.
- Work Rules: This is the section where you get to be specific – what are the rules that are unique to your business? Make sure these policies are legal and aren’t going to wind you up on the receiving end of a discrimination lawsuit.
- Required testing: This section addresses when you can make an employee undergo drug testing. The “usual” categories for testing times include pre-employment, post a workplace accident, and whenever there is “reasonable suspicion” that an employee is under the influence.
- Collection and testing procedures: Here is where you outline exactly what that drug test will look like. Will employees undergo urine or blood testing? Where will this testing take place? Who will review the test? What is the cut off for “under the influence?”
- Consequences: Now we’re down to the meat and the potatoes of the drug policy. If an employee is found to have violated the policy, this section is used to describe what will happen. Will they be disciplined? Terminated? Put on leave? This is where you flesh out all the details to ensure all parties are informed.
- Other: These sections cover a broad spectrum of things, including:
- Confidentiality: Results of their drug tests won’t be made public but can be shared with others in the company who review the employee’s performance as needed.
- Inspections: This clause states you have the right to search the premises for any prohibited substances and you have a legal obligation to contact law enforcement officials as needed.
- Statement of enforcement that designates who in the company is responsible for carrying out and endorsing these policies – it’s usually human resources.
- Certificate of receipt: Remember, a drug policy is not worth the paper it’s written on if it isn’t signed by your employees! Be sure to get their signature on it and add it to your records.
When it comes to managing the opioid crisis in the workplace, we strongly urge you to consider the following key points:
- Keep it open: Employers should create an environment where workers feel comfortable stepping forward if they have a drug problem, or believe that a co-worker does. Yes, it’s uncomfortable putting it out there that you want your workers to come to you, but it’s far better than existing in an environment where you only find out there is a problem when there is an accident or worse, a worker overdose.
- Check your status: If your company holds more than $100,000 in federal government contracts or obtains federal grants in any amount, your business is required to comply with the Drug-Free Workplace Act, which states that at a minimum, you must have a drug awareness program and that employees notify you of any drug-related criminal convictions.
Opioid, other prescribed medications and over-the-counter medications are a tricky minefield of risk and liability for small businesses. The human resource professionals at a Professional Employer Organization (PEO) are knowledgeable in all the nuances of the law and how to create equitable, enforceable policies that protect your business and your employees. They can also handle any suspected issues with grace and dignity.