Published in the TerraLex Connections newsletter (February 2018)
It’s on the news; it’s the subject of PSA’s; it’s on signs on city streets warning citizens against giving money to panhandlers because it might result in their deaths from overdose; it’s in every size and type of workplace. Although employers have long had to deal with employee alcohol and drug use, 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 legal and human challenges are great. The issues with which businesses are faced vary considerably and are taxing the resources and resilience of human resource professionals and those charged with the responsibility to address what used to be called “personnel” matters.
Legal Issues Surrounding Impaired or Addicted Employees. One of the most challenging issues is knowing how and when to address 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? How are these questions affected by the type of work the employee performs? 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. Reasons for time off could include weeks or months at a rehabilitation facility or modifications to work hours to attend therapy or 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 with time off to attend to such issues.
What If the Employee Says She’s Fine? When an employer suspects drug use, it is appropriate for the issue to be raised and discussed. 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 number one concern. Therefore, 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 assistance: 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 for which treatment is required, but once those efforts have been made, the employee needs to be given clear expectations for behavior and performance and told of the consequences of failure.
After the Rehab. Employers often ask how they should handle the return of an employee to the workplace after a stay at a treatment facility. Addiction specialists typically advise 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. Although an employer should definitely put in place a written contract or agreement with employee setting out expectations of behavior, the support the employee will receive and requirements for follow up testing, one should be careful not to set unreasonable expectations. That said, there should not 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 probably be created with the input of the recovery specialist helping the employee.
It is also important for other employees, to the extent the returning employee is comfortable sharing information, to understand the challenges facing their co-worker. For example, an employee who declines to go out for after work drinks with the team or chooses not to attend business development events and holiday parties where alcohol will be served should have their choices respected. For some, these events are too difficult, and they worry about maintaining their sobriety. These choices should not subject an individual to teasing or to loss of good work opportunities.
Struggling Family Members. Even if a business is lucky enough not to have employees with addiction issues, they likely have employees impacted in other ways by the crisis. Some 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. The benefits offered to employees and the company leave policies should be reviewed to make sure they 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? Recreational or Medicinal
The changing laws around marijuana use also pose a significant challenge to businesses. This is 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 a doctor’s prescription with workplace accommodations to allow for its off duty use. In other words, 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.
A few suggestions may help get the house in order to address the inevitable issues which may arise:
- If you don’t have an EAP, get one; and make sure they will make referrals to addiction specialists who can help addicted employees, employees in recovery, family members and supervisors who are at the front lines of the problem.
- Review your benefits offerings to confirm that you are providing adequate health care and mental health coverage.
- Review and update your policies around leaves of absence and flexible work hours and assess your work environment when it comes to encouraging or expecting social alcohol use.
- Review and update your drug testing policies to take into account new guidance from OSHA and new laws around marijuana use.
- Consider involving your employees in some community service and educational programs around mental health well-being to help empower them to address these issues personally and help others.