Drug overdoses are now the leading cause of death for Americans under the age of 50. Of the drugs contributing to these deaths, prescription opioids, heroin, and the synthetic opioids, such as fentanyl, have risen dramatically over the past few years, leading President Trump to declare the opioid crisis a national emergency. By now, this grim news is well-known by most Americans, but the opioid epidemic may be hitting closer to home than Maryland-area employers realize. The Center for Disease Control reports that Maryland had a 61.3% increase in drug overdose deaths from 2015 to 2016, while Delaware had a 65.4% increase and the District of Columbia had a staggering 114.3% increase – by far the highest increases among our nation. It is only a matter of time before employers begin to feel the effects of the opioid epidemic in the workplace, and the costs are high. The National Institutes of Health found that opioid abuse and dependence impose a substantial economic burden on employers, including over $10,000 in increased annual healthcare costs.
Unfortunately, addressing suspected opioid abuse by employees is not a simple task because of the blurred line between lawful and unlawful use. The Americans with Disabilities Act (ADA) protects employees with a past drug addiction and those lawfully using prescription pain medication, but does not protect unlawful use. In addition, it may be difficult for employers to tell the difference. To minimize the risk of legal exposure, employers should approach employees suspected of opioid use about the performance issues they observe, such as dozing off during the workday or not completing assignments, rather than asking employees outright if they are dealing with a substance abuse issue.
Further complicating matters, it could be that opioids are being used in accordance with a prescription but the employee still comes to work impaired. If employees come forward with this issue, employers must engage in the interactive process with the employee to determine whether a reasonable accommodation can be made to allow the employee to perform his or her essential job functions, while ensuring the safety of the employee and his or her coworkers. For example, a forklift operator on pain medication for a back injury could be assigned to a desk job for a few weeks while he recovers. As with any disability under the ADA, if the employee poses a direct threat to him or others, the employer can and should take immediate action to eliminate the threat.
Drug testing under the ADA is also tricky; permissible inquiries vary depending on the stage of employment. While employers can generally conduct random testing for illegal drugs, they cannot usually ask about prescription drug use unless the employer has objective evidence to suspect that the employee's prescription drug use impairs their ability to perform their job or poses a direct threat to themself or others. What's more, standard drug tests may not detect the drugs causing the issue, so special tests may need to be ordered.
To mitigate the business risks and risks to employees, employers should update their drug-free workplace and drug testing policies to ensure that prescription drug misuse is covered. Employers should also remind employees that leave under the Family and Medical Leave Act may be available for serious health conditions that are being treated by the lawful use of prescription opioid pain medication. Employers can also facilitate training for employees and supervisors to recognize the warning signs of opioid abuse and encourage employees to come forward with concerns – however minor – about suspected impairment in the workplace. Perhaps most importantly, employers should recognize the potential value in facilitating employees' rehabilitation efforts by discussing treatment options and arranging for temporary leave, if necessary.
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