The opioid epidemic – what to do when you have reasonable suspicion

By Kristen Cifolelli, courtesy SBAM Approved Partner ASE

Every day, more than 115 people in the United States die after overdosing on opioids. The misuse of and addiction to opioids—including prescription pain relievers, heroin, and synthetic opioids such as fentanyl—has become a national crisis that affects public health as well as social and economic welfare. The Centers for Disease Control and Prevention estimates that the total “economic burden” of prescription opioid misuse in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement. 
 
Employers are now starting to feel the impact from the cost burden of abuse, addiction treatments, absenteeism, and lost productivity.  More than half of employers (60%) say they’ve been affected by at least one case of opioid misuse or abuse according to a recent survey of 62 large employers by the National Business Group on Health.
 
As a result of this crises, employers need to be prepared with how to handle employees that may appear to be under the influence of drugs or alcohol at work.  The best solution is to have a well thought-out and written policy in place ahead of time.
 
But even with a written policy, challenging issues remain for employers who must make the policy work on the ground. They start with what to do when you have reason to believe an employee is under the influence when at work.  How does the process change if the drugs involved are legal vs. illegal? And what if the employee has a medical condition that supports the use of legal prescription medication that may result in impaired performance?
 
Here are some best practice guidelines for what to do when you have reasonable suspicion to believe an employee is under the influence of drugs/alcohol:
 
Employers must have a policy in place that clearly prohibits employees from using and being under the influence of drugs and/or alcohol in the workplace. Further, it should include language that allows the employer to perform drug testing if you have reasonable suspicion that an employee is under the influence.  
 
The employer should have a ready list of observable indicators (symptoms, behaviors) that can be used to help establish “reasonable suspicion.” Examples include: constricted/dilated pupils, red or watering eyes, slurred speech, bizarre behavior, odor of alcohol, profuse sweating, unsteady while standing/walking, etc. To head off the risk of discrimination complaints, this list should be used consistently when dealing with every instance of possible drug/alcohol use. Train managers well on the policy and implementation; otherwise a mistake could lead of perceived disability.

The evaluation should be made through the supervisor’s (or HR rep’s) own current, first-hand observation, not solely through input from other employees, clients, vendors, etc. For example, if a coworker reports suspicion of drug/alcohol use, the supervisor should document that conversation in detail, but then proceed with his or her own investigation. If at all possible, the supervisor should observe the behavior of, and speak to, the involved worker to determine slurred speech, the odor of alcohol, dilated pupils, etc. All these observations must be documented. The risk of failing to document or using poor judgment is an invasion-of-privacy lawsuit.

If the suspected employee is using machinery or equipment or performing job duties that could result in harm to themselves or others, he or she should be immediately removed and taken to a place where the supervisor can perform the investigation.
 
Supervisors should understand they are not to be diagnosing the condition, drawing conclusions or making accusations. They are not trained to do those things; they are simply evaluating signs and symptoms.  If possible, at least two supervisory or management employees should make separate observations of the employee and concur that there is reasonable suspicion to warrant a drug test.
 
If there is enough evidence to support reasonable suspicion, the employee should be removed from duty and sent for immediate drug testing. The supervisor’s specific observations should be communicated to the employee along with a reminder of the employer’s no-drug use policy. Do not allow the employee to drive himself or herself to the testing facility or home from it. You cannot force an employee to take a drug test, but you can terminate an employee for failure to take one, assuming your suspicions are valid.
 
If the drug test is negative, the employee should be allowed to return to work. The supervisor should take up concerns about the indicators that led to the testing as performance issues and follow through on them. If the drug test returns positive, there are additional steps to follow. If the positive drug test is for illegal substance use, the employer may terminate the employee for violation of its no-drug use policy (even if the drug involved is legally obtained medical marijuana).  If the employee tests positive for a legally prescribed drug, you will need to have a discussion with the employee to determine if the drug use was for a medical condition. The ADA requires employees who are taking prescription medications for medical conditions to inform their supervisor if they believe they might be impaired as a result, and/or might need a reasonable accommodation. But even if the employee failed to notify the employer, the employer should still go through the ADA process. If the employee cannot substantiate the need for the prescription drug, the employer can terminate the employee for violation of the no-drug use policy.   
 
One other option employers may consider using is a “last chance” agreement,  whereby the employee must seek treatment for drug/alcohol abuse and submit to periodic drug testing, as a condition of continued employment.  Failure to do would result in termination.
 
Determining how to handle an employee’s suspected drug use is rarely easy and straightforward. It requires great care. Generally the focus is on performance as opposed to suspicious behavior.  But failure to address the suspicion issue may result in an unsafe work environment and legal exposure if the employer does not handle it properly.