THE PROBLEM:
Opioid use and abuse. It crowds the headlines each day – another over-dose, death or accident caused by opioids. States are rushing to enact legislation to address the crisis; the U.S. Center for Disease Controls just published its first national guidelines for medical providers prescribing opioid pain-killers. Opioid addiction is particularly hard to beat – why? Because, opioids change brain-chemistry; sometimes permanently. Overcoming addiction is a lifetime battle.
Employers are finding themselves caught in the opioid crisis too as they struggle to deal with employees who are using or abusing opioids or working through recovery. Increased call outs, accidents, poor performance, distracted customer service are just some of the symptoms.
So, what can you do when you suspect an employee is using or abusing opioids? How do you support an employee in recovery? What are your legal obligations and rights? And, what can you do to reduce the impact of opioid addiction in your business?
THE LAW:
Drug use, addiction and recovery is covered by the Americans with Disabilities Act (“ADA”), a federal law which applies to employers with 15 or more employees. The ADA prohibits discrimination against qualified employees with disabilities. Most employers think about the ADA in terms of their obligation to provide a reasonable accommodation to a qualified employee (or applicant for employment) with a covered disability that will enable the employee (or applicant) to perform the essential functions of the job.
The ADA also addresses drug use, abuse and recovery or rehabilitation from addiction. Under the ADA, a current drug user is not protected from adverse action arising from use or addiction. A recovering or rehabilitated addict is protected. An employee using an opioid for a medically approved therapeutic reason, in accordance with his or her medical provider’s instructions, is also entitled to the ADA’s protection.
However, regardless whether the use falls within the ADA’s protection from discrimination or not, you don’t have to tolerate poor performance, absences, tardiness and other negative effects caused by addiction or medically authorized use which causes impairment.
THE SCENARIOS:
Let’s look more closely at how an employer’s obligations under the ADA plays out in three scenarios:
Example 1: An employee (or applicant for employment) tells you that s/he is a recovering addict and requests a work schedule that permits the employee to attend the employee’s regular Narcotics Anonymous meetings.
This employee (or applicant) is protected from discrimination and adverse employment actions based solely on being a former addict. Because being a recovered addict is a covered disability under the ADA, once the employer knows or should reasonably know that an employee requires a reasonable accommodation to perform the essential functions of the job the employer should begin an interactive dialogue with the employee regarding what can be done to provide a reasonable accommodation.
In this example, the employee has requested an accommodation in the form of a specific schedule. Absent undue burden on the employer’s operations the employer should seriously consider the extent to which it can reasonably accommodate the employee’s request. Undue burden is a very high standard to meet; the courts and EEOC look long and hard at employers who cite undue burden as a reason for not offering an accommodation, or take other adverse actions against a qualified employee or applicant with a disability.
While the bar for an employer to prove undue burden is high, the employer does not have to accept the accommodation proposed, requested or preferred by the employee, as long as the accommodation the employer is able provide is reasonable to permit the employee to perform the essential functions of the job. A good online resource for helping designing a reasonable accommodation for a specific disability paired with specific work tasks is the Job Accommodation Network, www.askjan.org, a service provided by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP).
In some instances, there may be no reasonable accommodation available. In the end, the ADA calls upon employers to accommodate disabled employees so that such employees may perform all the essential functions of their jobs to the employer’s actual standard. The ADA does not require employers to lower their standards or to change the essential nature and function of any specific job to keep otherwise unqualified people employed.
So, for example, if you are hiring servers to work breakfast shifts and a candidates says he can work but only lunch and dinner because of his therapy sessions (or any other reason), that candidate is not qualified for the job. If you are hiring breakfast servers to work 6 days a week and a candidate says she can work any day except Monday because of a therapy session, you should consider whether you can reasonably schedule her to always have that day off given the other personnel you have on staff. Such a schedule accommodation may well be a reasonable one, but the facts of each case will ultimately determine what should reasonably be done to accommodate your employees.
Example 2: An employee is frequently late. You also notice the employee is acting confused, making cash register and order entry mistakes, dropping dishes, and frequently sneaking into the back to use his or her cell phone.
First and foremost, address the performance issues! This means communicating to the employee’s his or her failure to meet clearly defined and uniformly applied performance expectations and documenting those communications.
What happens if the employee tells you he or she is using illegal drugs or prescription drugs illegally? This employee is not covered by the ADA because the drug use is current; but, also, thank the employee for their honesty. If you have a Drug Free Workplace Policy remind the employee of the policy – now it’s your call, you can 1) terminate employment, 2) place the employee on unpaid leave to get clean, or 3) follow through with the discipline plan you had prepared – written warning, suspension. You can also review the services available through the Company’s health insurance plan and/or EAP as well as other locally available services.
Example 3: An employee has returned to work following a 3 week leave of absence for back surgery. The employee has weekly physical therapy appointments twice a week which the employee has scheduled after work. To manage pain, the employee’s doctor has prescribed a 3 month course of oxycodone. At work, you notice that the employee is acting confused, making cash register and order entry mistakes, and dropping dishes.
Again, first focus on the performance issues. But also, because this is employee is likely covered under the ADA, you need to begin an interactive dialogue about whether a reasonable accommodation is needed to help the employee perform the essential functions of the job. In some instances, placing the employee on an unpaid leave of absence is a reasonable accommodation. You could also transfer the employee to a different job during the healing process, but giving a new job to an employee or changing the essential functions of an employee’s job to allow him or her to work is typically not required under the ADA. Again, the ADA calls upon employers to accommodate the disabled so that they may perform all the essential functions of the job to the employer’s standard. The ADA is designed to enable people to perform well and meet genuine standards, not to excuse poor or inadequate performance.
THE TAKE AWAY:
What can you do to help stem the tide of opioid use and abuse and minimize its impact on your business?
- Implement a Drug Free Workplace Policy. Your policy should prohibit the possession, use, distribution and being under the influence of illegal drugs (for example, cocaine, heroin etc.), as well as the lawful use of medically necessary prescription drugs which cause impairment on the job. Train on your policy, the same way you train on your sexual harassment and anti-discrimination policies. As part of this training let employees know about services available to help with addiction.
- Invest in an Employee Assistance Program. Learn about and be able to communicate to your employees the services available both through your EAP as well as your health insurance plans.
- Talk with your Health Insurer about coverage for alternative therapies such as acupuncture, massage, biofeedback and hypnosis for employees dealing with chronic pain.
- Update Job Descriptions and Performance Expectations. Make sure that your job descriptions and performance expectations are current and accurate.