America's Opioid Crisis: What Employers and Their Counsel Need to Know
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.
April 16, 2019 at 12:15 PM
6 minute read
The original version of this story was published on Corporate Counsel
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.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllEvaluating the Biden Administration's Business and Human Rights Agenda
10 minute readCorporate Regulation and Deregulation After the 2024 Presidential Election
6 minute readGeneral Counsels' Role in the Legal Profession's Mental Health Crisis
8 minute readCLO Sues for Wrongful Termination, Says Company Broke SEC Rules, Maligned Minorities
4 minute readTrending Stories
- 1Call for Nominations: The Recorder and Law.com's California Legal Awards 2025
- 2The Week in Data Dec. 13: A Look at Legal Industry Trends by the Numbers
- 3Antitrust Class Actions Against CVS, Other Pharmacy Benefit Managers Are Piling Up
- 4Judge Grinds NY's Cannabis Licensing Regime to a Halt Again
- 5On the Move and After Hours: Barclay Damon; VLJ; Barnes & Thornburg
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250