Consider a few scenarios:
- An employee has been injured on the job and unexpectedly fails a post-accident drug test, testing positive for opioids. What do you do?
- An employee comes into your office, closes the door, and confides in you that she is battling an addiction to opioids and needs help. What policies apply and laws come into play?
- An employee is increasingly absent from work, appears drowsy and inattentive when he is working, and his performance is slipping. You’ve issued a few verbal disciplinary warnings and have decided it is time for the employee to go, but when you go to put the “pink slip” in the employee’s locker, you find a current prescription for pain killers prescribed to the employee. Do you fire him?
- A candidate for employment submits an application, has impressive credentials, has relevant job experience and hits a home run at her interview. You make a conditional job offer subject to the candidate passing a comprehensive background check, which turns up a drug possession conviction. You raise the issue with the candidate, who discloses that she had a drug dependency addiction in the past but is clean now and still attending support group meetings to stay clean. Do you hire her?
These are just a few examples of how employers and the workplace can be affected by the opioid crisis. Just about everyone in this day and age has been touched by the opioid epidemic or knows someone who has. Employers similarly are not immune to this sad and sobering reality. The opioid crisis touches many employment law issues, policies and procedures, including background checks, drug testing, medical leave laws, employee benefits and counseling, social media and employee speech, employee privacy and HIPAA, and disability discrimination and accommodation under the Americans with Disabilities Act (ADA).
Of course, generally speaking, nothing prohibits an employer from terminating the employment of an employee for poor performance, absenteeism, tardiness, lack of focus or other issues commonly associated with opioid drug abuse. Similarly, nothing prohibits an employer from terminating the employment of an employee who is unlawfully using opioids without a prescription or abusing an otherwise appropriately prescribed drug, where such use or abuse is adversely impacting the employee’s performance. Indeed, current drug use, specifically where such drug use creates an ongoing problem in the workplace, may be grounds for termination under the ADA. An employer’s need to intervene and take action, including disciplinary action, is heightened where an employee holds a safety sensitive position (i.e., the employee is responsible for his/her own safety or the safety of others). In these types of occupations, drug use often cannot be tolerated.
The situation is much trickier and more challenging, however, when the employee comes to the employer requesting an accommodation, or otherwise puts the employer on notice that the employee may require an accommodation, to deal with an opioid addiction or dependency before the employer imposes any disciplinary action. For example, generally, an employee’s job is protected if unpaid leave is sought for rehabilitation. Accommodations also may be needed by an employee and appropriate under the circumstances where the employee requests time off or a flexible schedule to attend counseling, doctor’s appointments or support group meetings. So, what is an employer to do when the opioid epidemic arrives at its workplace?
When presented with the issue of employee drug use (or abuse), the first question employers often wonder is whether the affected employee is entitled to certain rights or protections under state or federal antidiscrimination, disability or leave laws, thus evaluating the situation under the framework of the ADA or Family Medical Leave Act (FMLA). Often, the starting point for any evaluation is what responsibilities, if any, the employer has to accommodate employees and address an employee’s past or present opioid abuse.
The ADA prohibits discrimination against applicants and employees who meet the statute’s definition of a “qualified person with a disability.” The ADA and its related regulations prohibit “covered entities” (generally, any employer having 15 or more employees) from discriminating on the basis of a disability against a “qualified individual” in their employment, including (among other things) recruitment, advertising and application procedures, hiring, promotion or demotion, discipline, awards of tenure, transfer, layoff or termination, job assignments, classification and leave. Generally speaking, a “disability” under the ADA is any physical or mental impairment, a record of such impairment, or being regarded or perceived as having such impairment, which substantially limits one or more of the major life activities of an individual. A “qualified individual” under the ADA is any employee who can satisfy the requisite skills, experience, education and other job-related requirements and can perform the “essential functions” of a position with or without reasonable accommodation.
Thus, if a “qualified” employee having a “disability” can perform the “essential functions” of the job with a “reasonable accommodation,” the covered employer must provide that reasonable accommodation to enable the employee to perform his or her fundamental job duties, so long as the accommodation does not present an “undue hardship” to the employer, with the reasonableness of the accommodation and any hardship it may cause to the employer reviewed on a case-by-case basis.
Drug use and dependency may constitute a “disability” under the ADA and may include employees who have successfully completed rehabilitation and are no longer engaging in any illegal drug use, employees who are participating in a bona fide rehabilitation program and are no longer engaging in such drug use, and employees who are improperly perceived or regarded as engaging in drug use when they are not. Thus, when an employee having a substance abuse issue requests an accommodation to enable the employee to do his or her job but, at the same time, to seek help, treatment, rehabilitation or counseling, the ADA’s reasonable accommodation analysis is instantly triggered. Common accommodations under these circumstances include, but are not limited to: mandatory counseling if the employee has a drug dependency issue; the use of employee assistance programs; allowing an employee a flexible schedule to attend support group meetings, counseling or treatment; and allowing the employee to take leave to enter a rehabilitation program.
The employer’s analysis is not limited to what may or may not be done under accommodation law. For example, when presented with an employee having a drug dependency or opioid abuse situation, employers are not defenseless. If the employee poses a significant risk of substantial harm to the health or safety of the individual or others, including other employees or the public (especially in safety sensitive positions), of which the direct threat cannot be eliminated or reduced by reasonable accommodation, the employer may screen out the employee from an employment opportunity, discipline the employee, or, as is customary, require that the employee be suspended temporarily with pay to undergo a fitness for duty evaluation to determine whether the employee is a direct threat to himself or herself, the workplace or others.
Another traditional tool of employers to identify and prevent substance abuse in the workplace is drug testing. Drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where 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 often is difficult to identify and, again, neither form of testing is necessarily that effective where the employee or prospective employee has a valid prescription.
The analysis can become even trickier where, as in many cases, the employee’s opioid use (or abuse) stems from a work-related injury from which the employee was prescribed opioids in the first place. In that situation, the life cycle of the employee’s opioid abuse can come full circle, and the empathetic employer should recognize the import and need to become a partner of the employee to help facilitate the employee’s treatment and return the employee to health.
Against this backdrop, and given the rise of the opioid abuse, the myriad legal issues that arise when an employee suffering from an opioid addiction or other form of substance abuse sets foot in the workplace, and the employer’s unique position relative to the employee whereby the employer can help facilitate the employee’s treatment (whether through insurance-based programs, employee assistance plans, counseling or employee medical leave), what can employers do to help fight this epidemic? First, employers should revisit and reevaluate their employee handbook, policies and procedures, including their drug-testing policies and procedures. As referenced above, drug testing can test for legal prescription medications, but to avoid a violation of the ADA, the applicant or employee must be permitted — and able — to provide a legitimate explanation for the positive drug test, such as a prescribed medication. Similarly, if an employee is using prescription medication, the employee may have an underlying medical condition that requires treatment, which employers have a duty to reasonably accommodate to avoid any kind of disability discrimination claim.
Employers also should consider investing in Employee Assistance Programs (EAPs) and requiring mandatory counseling for any positive employee drug tests or instances when the employee has admitted to drug dependency or substance abuse. These programs can help employees avoid or appropriately address drug addiction.
Employers having drug-free workplace policies should review those policies to ensure that they speak not only to illegal drug use and alcohol abuse (which generally are the focus of such policies), but also to prescription medications. Those policies should provide appropriate guidance to employees who are prescribed medications that carry a warning label or may cause impairment. An employer’s drug policies also should outline the steps an employer will take if an employee is suspected of drug use, including drugs or medications taken without a prescription or in larger doses (or greater frequency) than prescribed. Prescription drug testing can (and likely should) be added to illicit drug testing.
Employers also should decide whether and when such testing is warranted, whether for pre-employment screening, or for pre-duty, periodic, random, post-incident, reasonable suspicion, return-to-duty or follow-up situations. Drug policies and procedures also should spell out the protocol, procedures and/or corrective action that may ensue when an employee is suspected of misusing prescription drugs, and should identify what the employee’s leave options are, what medical certifications may be required, and what conditions must be met before the employee can return to duty.
Perhaps most importantly, employers should educate, train and provide appropriate coaching, mentorship and guidance to their workforce. Employers can invest in training and education for not only management, but also employees, with respect to how to identify opioid use, how to address it, and the impact of it. Management training can prepare management to identify substance abuse in the workplace and prevent it before it occurs or worsens, and to make sure employees receive help before the situation escalates.
Employee opioid use presents unique challenges for employers, in-house counsel and HR managers. Education, prevention, counseling and drug testing are important tools of the trade, but each employee abuse situation is unique and can present significant legal, medical and practical challenges. Given the height of the crisis, employers should revisit their drug policies and procedures, and always should consult with their employment attorneys to obtain legal advice before disciplining or taking any action against employees coping with substance abuse.
from New Jersey Law Blog http://ift.tt/2EOZoXV
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or 
