The opioid epidemic has taken hold of nearly every aspect of our daily lives, including family, friends, and business. For companies facing opioid use issues in the workplace, the issue has taken a toll on employers and their productivity and has also highlighted problems with policies and procedures, such as background checks, drug testing, medical leave laws, and employee benefits.
In general, nothing prohibits an employer from terminating the employment of a worker for poor performance, lack of focus, or other issues associated with opioid use. And nothing stops an employer from firing an employee who is unlawfully using opioids without a prescription or abusing another prescribed drug where the use is hurting their overall performance. But what about times where an employer fires an employee for lawful opioid use? Where does the employer stand then?
Looking at Employee Rights
When the topic of opioid use comes up in the workplace, the first thing that employers need to look into is the rights the employee has when it comes to federal or state antidiscrimination protections, disability or leave laws.
According to the Americans with Disabilities Act, discrimination is prohibited against applicants and employees who meet the statute’s outline of a qualified person with a disability. The regulations related to the ADA prohibit covered entities, such as an employer with 15 or more employees, from discriminating on the basis of a disability against a qualified person.
In general, a disability under the ADA is any impairment, be it physical or mental, which limits one or more of the major life activities of an individual. If a qualified employee having a disability can perform the essential duties of their job with a reasonable accommodation, the covered employer must provide that accommodation to enable the employee to perform their job duties.
When it comes to drug use, an employee may claim disability under the ADA, which may include employees who have successfully completed rehabilitation and are no longer using drugs illegally or are currently participating in a rehabilitation program. When an employee having a substance abuse issue requests an accommodation from them to do their job, the ADA’s reasonable accommodation analysis is put into motion.
If an employer blocks an employee from seeking help while employed, they could be stepping on their protected rights. This will open the door to potential legal trouble that can cause a major financial pain on the company. Having employment practices liability insurance can help to protect these businesses from discrimination claims from employees with dependency issues or rehabilitation needs, but it still helps to understand the legal ramifications of keeping employees with substance issues from receiving the help they are encouraged to under the law.
Drug testing has always been a valuable tool for employers when it comes to weeding out potential employees or current employees who actively use recreational or prescription drugs illegally. However, drug testing is not always an effective solution when the employee has a legal prescription. On a similar basis, random drug testing and testing where suspicion exists also can be effective, but it can lead to potential discrimination lawsuits brought on by employees who feel threatened and unfairly targeted.
Employers who have a drug-free workplace policy should be sure to review their policies to make sure that they cover not only illegal drug and alcohol abuse, but also prescription medications. The policies should lay out clearly appropriate guidance to employees who are prescribed medications that come with a warning label. An outline for drug policies should also include the steps an employer will take if an employee is suspected of opioid use.
Employers should also cover their legal status by deciding whether and when drug testing is warranted, for pre-duty, post-incident, reasonable suspicion, or similar situations. Drug policies should also paint a clear picture when it comes to protocol and corrective action that may happen as a result when an employee is suspected of misusing drugs.
Employee opioid use does present unique challenges for employers, HR managers, and in-house legal teams. By being proactive about education around opioid use among the workforce, businesses can help their own legal standing and be informed about their employees’ struggles and how to accommodate them in the best way possible.
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