You may have heard about the recent landmark court order in which Johnson & Johnson has been ordered to pay over $572 million as part of an abatement plan to rectify the devastating effects of opioid abuse in the state of Oklahoma. The lawsuit alleged that a number of drug manufacturers had downplayed the dangers of prescription opioids and had misrepresented the benefits. The result of that conduct, according to the lawsuit, caused a health crisis relating to opioid drug abuse.
The Oklahoma court in that case found that the state of Oklahoma and the public in general are currently experiencing an opioid crisis — a crisis that was started by and that still primarily involves prescription opioids. And although the parties and the public may still disagree about who was (or is) responsible for the opioid crisis, it would appear that there is a general consensus that the opioid crisis is real and is having a devasting effect on communities and states throughout the country. According to the U.S. Center for Disease Control and Prevention, the opioid crisis has resulted in the deaths of over 400,000 individuals across the U.S.
U.S. employers are not immune from the effects of the opioid crisis. The potential workplace impacts which stem from employee opioid abuse include an increase in employee absenteeism, excessive sick day use, low productivity, mistakes, errors and accidents, workplace stress, increase in healthcare costs, and high employee turnover. Because of these negative effects, many employers have decided to take a proactive approach to combat these problems.
For example, some employers are implementing drug testing programs, which have been shown to reduce employee absenteeism and lower workers’ compensation rates. Other employers are reviewing or implementing an Employee Assistance Program (EAP) to ensure that employees have access to the specialized resources they need if they or a loved one are being affected by opioid addiction. Company culture also matters — employees who feel safe coming forward to address their personal issues with their managers or human resources will be more likely to request this assistance before their addiction or stressors negatively affect their work performance.
In addition, employees with addiction issues may have certain rights under state and federal law. The Family and Medical Leave Act (FMLA), for example, may provide eligible employees with job protected leave for substance abuse treatment when provided by a health care provider or other provider of health care service on referral from a health care provider. Notably, however, the FMLA does not provide employees with job protected leave for absences that are caused by the abuse of the substance. Not understanding an employee’s rights under the FMLA can be a costly mistake.
Likewise, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to their qualified employees with disabilities, unless doing so would cause undue hardship. That said, employees who are currently engaged in the illegal use of opioids or other drugs are specifically excluded from the definition of a "qualified individual with a disability" protected by the ADA when an action is taken on the basis of their drug use. But time off for treatment may be a reasonable accommodation that employers are required to provide when there isn’t evidence of the current illegal use of drugs. For example, an employer may be required to provide time off for treatment for an addiction issue or other accommodation related to the legal use of opioids for a disabled employee if that use is affecting the employee’s ability to perform their essential job functions.
Under both the FMLA and the ADA, employers are prohibited from discriminating against their employees for asserting their rights under these statutes, such as requesting FMLA leave or a reasonable accommodation. Likewise, employers must be careful not to stigmatize or make assumptions about employees who disclose their addiction or substance abuse treatment or treat them less favorably than other employees solely because of that disclosure.
For example, the EEOC recently filed suit against an employer for terminating a new hire because he was receiving treatment for his addiction. In that case, the employee had — in the past — sustained a shoulder and arm injury that required surgery and extensive rehabilitation. During his recuperation, the employee became dependent on prescribed opioid pain medications. At the time of hire, the employee had been in a treatment program for over a year taking a dose of prescribed methadone at night after the work day. Despite the fact that there was no evidence that the employee’s treatment impacted his ability to effectively and safely perform his job duties, the employer terminated his employment. The EEOC, in that case, is alleging that the employer violated the ADA by terminating the employee because it regarded the employee as disabled and/or because of the employee’s record of a disability. Although the jury is still out in that case, employers who wish to avoid EEOC scrutiny or litigation should take care to understand the legal landscape surrounding opioid addiction in the workplace.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before becoming an HR Consultant in 2015.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before joining Associated Financial Group’s HR Consultants in 2015. She educates and advises Human Resources professionals and employers on a broad range of employment issues and best practices and costly litigation compliance topics including respectful workplace practices, unlawful harassment avoidance, wage and hour issues, medical leaves and accommodations, as well as federal and state discrimination and anti-retaliation issues. Janice received her undergraduate degree from the University of Wisconsin-Milwaukee, magna cum laude, and her law degree from the University of Wisconsin, cum laude.
Risk management and human resources are traditionally two different job functions, and the people in these areas have rarely crossed paths — but that is changing.
Why are these people starting to work together more frequently?
Foth Companies, headquartered in Green Bay, Wis., understands the link between the company’s success and the well-being of its employees. Implementing a wellness program called “Workin’ Well” featuring health risk assessments (HRAs) is one way the company is demonstrating its commitment to employees.
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