Opioid Crisis Challenges Employers

December 20, 2017

Published in Business NH Magazine (December 2017)

Although New Hampshire has long been cited as a state with significant alcoholism issues, the sheer magnitude and scope of the opioid crisis has businesses reeling on a number of fronts. With the advent of marijuana decriminalization and expanded use for medicinal purposes, the challenges are taxing the resources and resilience of human resource professionals.

Impaired Employees.  One of the most trying situations is addressing an employee who appears to be struggling with an addiction issue.  When is it appropriate to ask questions and what can you ask?  What responsibilities does a company have to provide support, time off, and workplace accommodations? What happens when an employee returns to work? 

Many of these issues are governed by the Americans with Disabilities Act ( “ADA”) or comparable state laws which apply to smaller businesses.  Under certain circumstances employees are entitled to time off to address their addiction issues which in many cases would be deemed a disability.  Time off could include weeks or months at a rehabilitation facility or modifications to work hours to attend therapy of 12-step meetings.  Employees actively using illegal drugs do not necessarily have the protections of the ADA, but workplaces will usually try to support struggling employees.

If the Employee Says She’s Fine.  If supervisors observe behavior which suggests drug or alcohol use such as glazed eyes, slurred speech, alcohol on the breath, or unsteady gait, the employee should be questioned and, if the employer’s policies allow, be sent for drug testing.  Safety of the employee, co-workers and the public should the primary concern, and impaired employees need to be removed from the workplace. 

As a follow up, the employee, once the immediacy of the situation has been diffused, should be offered a referral to the Employee Assistance Program (“EAP”) or time off to address the issue.  If the employee denies addiction and refuses assistance, the employer has no option but to manage the employee’s performance as it would for any other.  Often it takes more than one overture for an individual to admit they have an issue and require treatment.  The employee needs to be given clear expectations for behavior and performance, and told of the consequences of failure.

After Rehab.  Employers often ask how they should handle the return of an employee to the workplace after a stay at a treatment facility.  Most addiction specialists say that recovery is a process, not an event.  It is the rare individual who comes back “fixed” and never strays again.  Employers need to be mindful of that and understand that most individuals will need significant aftercare support which will include time off to attend meetings or individual therapy. 

Similarly, there may be a recurrence of prior drug or alcohol use.  An employer should d  put in place a written contract or agreement with the employee that sets out expectations of behavior, the support the employee will receive and requirements for follow up testing.

While such a contract should be careful not to set unreasonable expectations, there should never be an endless number of “last chances” as the employer needs to run a business and be mindful of the morale and safety of others who work there.  The return to work agreement should set clear and realistic requirements and should  be created with the input of the recovery specialist helping the employee.

Create an atmosphere where employees are not teased or lose work opportunities because they decline to go out for drinks after work with the team or choose not to attend business development events and holiday parties where alcohol will be served.  For some, these events are too difficult, and they worry about maintaining their sobriety. 

Struggling Family Members.  Some employees may have addicted or incarcerated family members or may even have lost children, family or friends as a result of overdose.  These individuals may be distracted, suffering from depression or anxiety and have poor attendance.  Review the company’s benefits and leave policies to  provide the supported needed.  Those who work for larger businesses may be entitled to leave under the Family and Medical Leave Act (“FMLA”).  Bereavement leave, personal leave and policies around flexible work hours and telecommuting are likely implicated.  EAP’s are critical and should routinely be suggested and advertised.

What About Marijuana? 

The changing laws around marijuana use also pose a significant challenge to businesses, and this is also a state specific issue.  Although marijuana remains a controlled substance under federal law, some states have legalized use for medicinal purposes while others allow recreational use. 

What makes management of this issue more difficult is the lack of clear standards to measure impairment.  Recently, the Supreme Judicial Court of Massachusetts ruled that employers may need to provide accommodations to employees using marijuana per doctor’s prescription with workplace accommodations to allow for its off duty use.  It is no longer enough to say that because marijuana use is illegal under federal law, there is no requirement to accommodate for it.  This complicates issues of drug testing as well.