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 final article of a four-part series, Littler shareholder Dale L. Deitchler and associate Jeffrey E. Dilger, discuss how to handle issues of reported addiction and addiction relapse in the workplace. Here is part 1 , part 2, and part 3. Update: the CDC just released that during 2017, more than 70,000 Americans died from drug overdoses, primarily from fentanyl.
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Previously, our focus and analysis was on addressing ongoing, present illegal drug and alcohol use and abuse affecting the workplace, and managing objectively-observed behavior and performance. In those situations, the fundamental principle to follow is that an employer should never assume, speculate or assert that an employee is an “addict” or has a “problem” with drugs or alcohol, even when an employee self-identifies as such. Instead, the employer generally has the discretion to apply its rules following substandard performance or behavior or referral for testing under any testing program irrespective of whether an employee later claims an “addiction” or “problem” to excuse performance, behavior or referral from testing. In contrast, here we explore something different: what if the employee self-reports a drug or alcohol problem prior to a rules violation, performance deficiencies or referral for testing?
Employer treatment of individuals who purport to have addictions is governed by the Americans with Disabilities Act (ADA) and comparable state laws. An individual qualifies for protection under the ADA from discrimination if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded or perceived as having such an impairment.[1] Whether an individual with addiction might qualify as disabled depends upon the substance to which the individual is addicted. Individuals may qualify as disabled if they are either presently an alcoholic or a recovering alcoholic.[2] However, the protection of illegal drug users is limited to individuals who, under ADA language courts have interpreted as a “safe harbor,” are no longer engaging in the illegal use of drugs and are participating in or have successfully completed rehabilitation or treatment.[3] Covered employees are entitled to, as is now familiar, reasonable accommodation under these laws.
When an employer receives a voluntary self-report of addiction, it is critical to avoid simple agreement with the employee’s assessment as management is not qualified to make such an assessment. Instead, the employer should offer express support, provide information about any available Employee Assistance Program and offer leave consistent with disability and leave laws and employer policies and practices. Employers will also want to weigh and consider employee reasonable accommodation requests, consider interactive dialogue obligations, if any, and evaluate any emergent safety issues and undue risk of harm determinations.
Reasonable accommodations for recovering addicts may include such employer measures as a temporarily modified work schedule to facilitate attendance in outpatient treatment programs, recovery group meetings and the like or a full leave of absence in the case of in-patient treatment.[4]
Fundamentally, if an employee has disclosed alcohol problems and works in a non-safety-sensitive position, little if any continuing work limitations will be lawfully available or even helpful. In contrast, when an employee discloses illegal drug use or substance abuse and works in a safety-sensitive position, employers generally have discretion to frame basic continuing work limitations and conditions when an employee voluntarily self-discloses a substance problem.
Relapse occurs when an addict who has abstained resumes substance abuse. Importantly, an employer need not accommodate a relapse of illegal drug use because current illegal drug use removes an employee from protection under the ADA, particularly if there is workplace impact.[5] If an alcoholic employee relapses and uses and abuses alcohol again, an employer is left with a decision. If the employee has violated the employer’s policies, or has violated the same employment standards to which the employer holds other employees, an employer may impose discipline.[6] However, if the employee has not otherwise violated the employer’s policies or work expectations (such as relapsing during non-work hours), the employer is obligated to provide reasonable accommodation as and if needed, but is not required to relax behavioral standards. And, again, the safety-sensitive nature of an employee’s position, if any, should always factor into relapse scenarios an employer learns about.
Management might also engage, where appropriate depending on the nature of the disclosure and position, services of a substance abuse or chemical dependency counselor for employee evaluation and recommendations. If a union is involved, with appropriate written authorization and consent, it might be necessary at some point to also at least provide notice if not engage union business agents. Finally, DOT regulations specifically anticipate self-disclosure scenarios and allow for them under the applicable regulations – those regulations relax the mandates for return to work driving a commercial motor vehicles so long as employer policies set forth certain language and certain protocols are followed.
While navigating addiction in the workplace requires the employer to be thoughtful and deliberate, the general approach for employers should be to set aside mere speculation of addiction and address concrete, provable violations of employer policy or work expectations. When an employee voluntarily self-reports addiction, discipline will almost by definition never be the path forward—for example, a voluntary report, absent misconduct, should likely not result in the imposition of a disciplinary “last chance agreement,” because the employee has done nothing wrong. At most, along with expressions of support, notice of leave rights, receptivity to reasonable accommodation requests, absent illegal drug use disclosure or safety sensitive work, an employer might consider a simple reminder of applicable substance abuse and testing policies and an expectation of compliance. Needless to say, voluntary self-disclosures of substance abuse problems pose unique challenges that are in many respects more difficult to manage than when a policy violation has occurred or an employee’s behavior is deficient. In many of those situations, little if any further supervisory or HR action will be necessary (or legal).
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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] 29 C.F.R. § 1630.2(g)(i)-(ii).
[2] Not all courts agree that alcoholics or recovering alcoholics are categorically “disabled” under the ADA. Some courts analyze alcoholism on an individualized basis. Compare, e.g., Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996) with Wallin v. Minnesota Dep’t of Corr., 153 F.3d 681, 686, n. 4 (8th Cir. 1998). With ADA amendments a number of years ago that broadened coverage protection practically, on a human resources management basis in specific situations, coverage may necessarily approach a presumption.
[3] 42 U.S.C. § 12210.
[4] See 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2).
[5] 42 U.S.C. § 12210.
[6] 42 U.S.C. § 12114.