Blog

Fredrick (“Fred”) J. Bissinger, Ford Harrison LLP
Lexology Blog

Addiction issues, especially the ongoing opioid epidemic, can significantly impact the workplace, and employers should ensure they have policies and procedures in place to address the potential impact of these issues.

The opioid epidemic has been ongoing for roughly two decades. Unfortunately, it appears that the number of Americans dying from drug overdoses, and in particular, opioid overdoses, is still increasing across time. The numbers are, at best, sobering. In 1999, the total number of recorded drug overdose deaths (all drugs) in the U.S. was less than 18,000. Since then, the death totals have consistently increased to the point they are now more than five-fold the 1999 total. In 2021, the Centers for Disease Control and Prevention’s (CDC’s) predicted number of drug overdose deaths (all drugs) was 109,179 with roughly 82,000+ of those deaths attributed to opioids – primarily synthetic opioids like Fentanyl. For 2022, the CDC predicts the number of drug overdose deaths will increase to 109,680, again with roughly 82,000+ deaths being attributed to opioids, and with synthetic opioids being the primary driving force behind the vast majority of these deaths.

As if these numbers were not bad enough, they don’t contemplate those who die indirectly from opioid abuse – for example, from HIV, Hepatitis C, and other medical issues caused or exacerbated by opioid abuse. Likewise, they do not account for the mental, emotional, and financial damage such addiction scenarios and deaths inflict on family members, friends, co-workers, workforces, and communities. Point being, this is an epidemic of incredible proportions which will not be resolved at any point in the foreseeable future.

For employers of any variety, it is hard enough in the current economy to recruit and retain talent that will come to work on time, perform their job duties as requested, and behave in an acceptable manner. Layering on the complexity of the opioid addiction crisis (not to mention the number of Americans grappling with alcohol addiction issues), simply makes this challenge that much more difficult and complicated. The question is not whether as an employer you will deal with a scenario in which an employee (or an employee’s immediate family member) has an addiction issue that creates life-altering problems for the employee, as well as operational readiness and/or legal liability issues for your company, but instead when will you encounter it.

• How to navigate this issue is the subject of a much longer discussion. However, the following is a starter list of issues for consideration to help you prepare now and be better positioned to legally and effectively navigate an addiction scenario when it arises.
• Do you utilize an effective drug-testing program at the pre-employment stage and during the course of employment?
• Are your drug-testing policies up to date and legally compliant in the states in which you operate?
• Are your drug-testing vendors utilizing the most effective drug-testing protocols?
• Are your behavioral expectations and related policies that discuss intoxication in the workplace up to date and legally complaint?
• Are your employees properly trained on such expectations and policies?
• Are your supervisors and managers trained on what to look for in terms of intoxication in the workplace?
• Are your supervisors and managers trained on how to respond if they believe an employee is intoxicated at work?
• Do you have a plan of action in place, so as to effectively respond to an overdose event in your workplace?
• Are your local first responders familiar with your facilities, such that they can timely respond to an overdose scenario?
• Do you have an effective Employee Assistance Program (EAP) that will help you and an employee who needs to go to rehab effectively navigate that process?
• Are you familiar with the applicable Family and Medical Leave Act (FMLA) regulations dealing with leave for an addiction rehabilitation stay?
• Are you familiar with the applicable Americans with Disability Act (ADA) provisions dealing with addiction issues?
• Are you aware of the significant overlap between addiction and unresolved, underlying mental health issues?
• Do you have a relationship with a mental health provider who can assist you in understanding how to identify and work with employees suffering from mental health issues that impair their ability to appropriately execute the essential functions of their job?
• Do you have an established plan of action for potentially returning an employee to work after he or she successfully completes a rehab program?

The Bottom Line

The reality is that addiction issues, especially opioid and alcohol addiction issues, are pervasive across our society, and directly or indirectly touch virtually everyone. Employers who take the time and effort to educate themselves on this vexing and complicated set of issues are much more likely to navigate them well, which yields many positive benefits both for employees and the company overall.