With the rise of opioid and other drug addiction in the US today, employers have to wonder – is it possible one of my employees is dealing with addiction? In the first article of a three-part series, Littler shareholders Dale L. Deitchler and Jeffery E. Dilger, discuss how an employer should approach an employee who might be dealing with an addiction, what to do or say when substance abuse is evident, and when it is okay to discuss a substance addiction.
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In almost every case, the simple answer to whether you should approach an employee who might be dealing with an addiction is “don’t.” Yes, employees may very well be dealing with addiction issues—illegal drug use and alcohol abuse in the United States are wide-ranging and prevalent. In 2016 alone, more than 48 million individuals reported using illegal drugs, and more than 16 million admitted “heavy” alcohol use.[1] For some 20 million individuals, illegal drug use or alcohol abuse (or both) crosses the line into substance use disorder—51% of whom report being employed full- or part-time.[2] Because substance abuse is pervasive, eventually almost every employer may need to address substance abuse issues with employees.
However, discrimination and medical privacy prohibitions loom large over employers when interacting with an employee who may be an addict. Employers must tread carefully, as there may be legitimate reasons for symptoms suggesting substance abuse (e.g., red eyes or lethargic behavior from sleep deprivation); or, an employee may, in fact, be impaired by drugs or alcohol but not be an “addict.” This article provides the legal framework and basic guidelines for communications with personnel who may be substance abusers. (We do not address regulated employment, such as employment involving application of Department of Transportation (DOT) drug/alcohol rules.)
Fundamentally, employers should generally avoid approaching (or confronting) an employee who “might” be dealing with an addiction. Supervisors, who are not substance abuse professionals, act at their peril when there is mere speculation that an employee might have a substance abuse problem and do more or direct more than what employers know best: managing work-related performance and behavior issues. There is simply too much (unnecessary) risk in premature confrontation that a manager or HR rep will misstep, e.g., sharing an armchair chemical dependency assessment that he or she thinks the employee “has a problem,” is an “addict,” or is an “alcoholic.”
Even where there is genuine supportive concern, it is best to forego any preemptive intervention in the absence of objectively substantiated misconduct. While it is understandable employers may want to “get to the bottom of” or resolve suspected substance issues, generally, the safest course of action will be to simply weigh known employee conduct against established rules and work expectations, factoring in an employee’s work record and treatment of other employees in similar situations.
Overview of Employment Law Standards Relating to Substance Abusers
Disability laws protect qualified individuals with a disability from employment discrimination and require reasonable accommodation of protected-status employees. Those laws also specifically protect individuals who are “perceived as” disabled, whether or not they otherwise qualify for protection. While alcoholics may be qualified individuals with disabilities, current illegal drug users, aside from state law medicinal marijuana scenarios, are not protected. (Under case law, “current” generally means a few months and even up to 6 months.) Based on language in the Americans with Disabilities Act (ADA) providing that individuals who are satisfactorily participating in or have successfully completed rehabilitation are not excluded from ADA protection, courts have ruled that such individuals have a “safe harbor” and enhanced status and also are entitled to protection.
The Family and Medical Leave Act (FMLA) allows leave for eligible employees with serious health conditions. Leave for rehabilitation or treatment constitutes a serious health condition under the FMLA; thus, if an employee is otherwise eligible, in general, leave must be provided to an employee seeking leave in order to attend treatment.
Unionized employers also must assess just cause standards when considering discipline or if confronted with misconduct that might be related to substance abuse. Under “just cause,” even if there is overt misconduct, such as a positive test result, confronting an employee with a substance abuse issue and imposing discipline may be limited (e.g., in a famous U.S. Supreme Court decision, the Court upheld reinstatement by a labor arbitrator of an employee who twice tested positive for marijuana on a workplace drug test).
What these laws, however, do not require is employers’ turning a blind eye. Rather, when substance abuse has a workplace impact, whether the impact is on job performance, behavior, attendance, or any other issue, employers may hold substance abusers to the same standards as any other similarly situated employees. Additionally, under these laws, employers may generally (1) prohibit use and possession of illegal drugs in the workplace; (2) prohibit working while under the influence of illegal drugs or alcohol; and (3) develop, implement, and administer workplace substance abuse and drug/alcohol testing programs, subject to ADA, Occupational Safety and Health Administration (OSHA), and state workplace testing and other applicable laws.
What to Do or Say When A Substance Abuse Issue Is Evident
What to say when a substance abuse issue is evident depends on context. If the issue arises based on substance impairment at work (e.g., an admission) or a positive drug/alcohol test result, without speculating an employee has a “problem,” employers may, subject to law, discipline and even terminate an employee’s employment or, alternatively, impose continuing work agreements or requirements for any employee they choose to retain. Such requirements may include directing a substance abuse assessment by a substance abuse professional (SAP); compliance with SAP recommendations relating to abstinence, education, counseling, rehabilitation, treatment, or aftercare; and return to duty or follow-up testing.
If the issue arises through voluntary admission, with someone claiming to have a substance abuse problem, and in the absence of misconduct, supervisors should not “agree” with the employee that he or she has a problem, as again, supervisors are not chemical dependency specialists. Rather, genuine expressions of support should be offered, and contact information for an employer’s Employee Assistance Program should be provided, if available, along with information regarding available leave under the FMLA, state leave laws, and employer leave policies. (Proactive employers may also encourage such admissions by adopting an appropriate substance abuse self-disclosure policy.) When self-disclosures are made, employers will need to assess, on a case-by-case basis, whether to impose continuing work requirements, factoring in, among other things, whether the disclosure relates to illegal drug use and/or if an employee works in a safety-sensitive position.
For employees in either scenario, management may need to consider and analyze issues surrounding temporary removal from safety-sensitive work (e.g., regular driving).
In part 2 of this article we are going to look at a few examples of employees that might have a substance abuse problem as well as training and guidance on how to handle these kinds of situations.
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ale L. Deitchler, shareholder at Littler represents management in all phases of labor law, labor relations, and standards. Dale also counsels clients on a wide variety of employment law issues, offering advice and practical solutions about the Family and Medical Leave Act, discipline and discharge, employment discrimination, employment and non-competition agreements, and unemployment compensation
Jeffrey E. Dilger represents and counsels clients in a broad range of labor matters, including: Unfair labor practice proceedings before the National Labor Relations Board, labor arbitration, labor negotiations, and National Labor Relations Board elections. In addition to a robust labor law practice, Jeff routinely counsels clients in the ever-evolving field of federal and state drug and alcohol testing laws. Jeff’s practice includes assisting clients with all aspects of drug and alcohol testing programs, including creation, implementation and enforcement.
[1] U.S. Substance Abuse and Mental Health Services Administration, National Survey on Drug Use and Health, Sept. 7, 2017, at 167, 747 (summary available at: https://www.samhsa.gov/data/sites/default/files/NSDUH-FFR1-2016/NSDUH-FFR1-2016.htm).
[2] Id. at 1220, 1230.