On July 10, LSHRM members will not want to miss the LSHRM Legal Conference taking place all day at the Delphi Center on the University of Louisville campus. Fisher Phillips is thrilled to partner with Incipio Workforce Solutions to sponsor the conference and provide the legal speakers. We will be discussing several topics including how to address the opioid epidemic, dealing with a catastrophe or emergency in the workplace and steps to take in the aftermath, an interactive role play dealing with sexual harassment and a timely NLRB and social media update. Let’s delve into one of the trending topics that will be kicking off the conference: the opioid epidemic and how as an employer you can help to be a part of the solution.
The use and misuse of opioid prescriptions is rising throughout the U.S. A recent study showed two million Americans had a substance use disorder involving prescription pain relievers. In addition, as many as 50,000 Americans may have died in 2016 as the result of an opioid-related overdose. Although the opioid epidemic is a societal issue, it directly impacts American employers. Addiction to pain medications has led to absenteeism, lost productivity, workplace accidents and an overall negative impact in the workplace. In fact, according to a recent survey, 71% of U.S. employers say they have been affected in some way by employee misuse of legally prescribed medications, yet, only 19% feel extremely prepared to deal with prescription drug misuse. Although there is no magic solution to this problem, employers can take reasonable steps to address opioid misuse in the workplace while carefully avoiding potential legal pitfalls.
Drug-Free Workplace Policies
First and foremost, employee handbooks should contain a drug-free workplace policy that prohibits employees from being under the influence of, using, possessing, or selling illegal drugs in the workplace. This policy should explicitly cover the unlawful use of legally prescribed drugs. Employers should also have a drug testing policy, which should be clearly spelled out in writing in an employee handbook that is distributed to employees.
Testing, Discipline and Counseling If there is a drug testing policy and drug-free workplace policy in place, the employer can conduct a drug test if there is reasonable suspicion that an employee is using or abusing drugs, such as opioids. Observations that may show reasonable suspicion can include slurred speech, sleeping on the job, and erratic and unusual behavior. If the drug test comes back positive, the employer can discipline or terminate the employee for violating the drug-free workplace.
Disability Accommodations When implementing drug-free workplace policies, employers must be aware of their obligations under the Americans with Disabilities Act (ADA) and Kentucky law, which provide certain legal protections to individuals who have a “qualified disability,” most notably requiring that employers provide the employee with a reasonable accommodation. Neither the ADA nor Kentucky law protects an employee who is currently engaging in the illegal use of drugs. Therefore, there is no legal obligation for an employer to provide a reasonable accommodation for this employee based on the illegal drug use, and the employer can discipline or terminate an employee for performance issues or policy violations regardless of whether the underlying issues stem from the illegal drug use.
Managers should receive training on employer drug-free workplace policies, drug testing policies, and the interplay between illegal drug use and the ADA’s protections. It is imperative that managers follow the company’s policies and be cognizant of the ADA implications in order to avoid violating the law and creating potential future liabilities for the company.
There is no perfect plan currently available to deal with the opioid crisis in the workplace, but taking the proactive steps outlined above is a good place to start. We hope to see you all at the legal conference on July 10 for a more in depth discussion.