United States: A Continuing Discussion On The Opioid Epidemic In The Workplace – Part 3

Executive Summary: This is Part 3 of a series of Alerts exploring different facets of the ongoing opioid addiction crisis afflicting our country. Our initial Alert on June 12, 2023 outlined the big-picture issues associated with this epidemic. Our September 7, 2023 Alert (Part 1) addressed how to identify a potential addiction issue, when to engage, and how to engage on same. Our December 11, 2023 Alert (Part 2) focused on some of the medical issues related to addiction and why it is helpful for employers to better understand these issues when navigating an addiction scenario with an employee. This Alert (Part 3) focuses on navigating the rehabilitation process.

Considerations When Assisting an Employee Navigate the Rehabilitation Process

By the time an employee asks for assistance to enter a rehabilitation program they are inevitably in a very difficult situation. Such an employee's personal life has most likely fallen apart, even if their job attendance, performance, and behavior have not yet done so. Understanding the employee's big-picture situation and needs is certainly helpful when trying to assist an employee who is deliberating on whether to enter rehabilitation program, and if yes, what type of program, and when.

To facilitate an effective discussion with such an employee, an HR professional or business manager needs to have a good grasp on several issues, including what coverage the group health policy provides in relationship to a rehabilitation program, what services the EAP program provides (mental health counseling, access to rehabilitation facilities, etc.), and whether income replacement benefits like short term disability are available. Further, it is important to know the distinction between rehabilitation program options. That way an employee considering a rehabilitation program can evaluate all the relevant issues and available options, and then choose a course of action best suited to his/her needs and situation.

Most of us are familiar with the general concept of in-patient rehabilitation programs. However, many rehabilitation providers also have an out-patient option, which, in certain cases, may be very effective, especially if the employee is able to continue working – even in a limited capacity. Further, some rehabilitation programs are based on abstinence – e.g., Alcoholics Anonymous and Narcotics Anonymous. With respect to Opioid Use Disorder rehabilitation, some facilities utilize what is commonly known as "MAT" ("medication-assisted therapy"). MAT programs entail counseling and behavioral therapies, including the use of certain medications (Buprenorphine, Naltrexone, and Methadone) which are designed to dull the cravings associated with opioid usage cessation and withdrawal.

It is no secret that there have been and will continue to be vigorous social, medical, ethical, and political disputes over the efficacy and legitimacy of MAT programs. That debate is beyond the scope of this article and is one on which reasonable minds can differ. However, regardless of one's view on MAT, the statistical evidence to date establishes that it is an effective treatment methodology, and ultimately, it is up to the employee to decide which type of treatment is best for him/her.

The Mental Health Component

In our last Alert, we discussed the fact that Opioid Use Disorder re-wires the brain's chemistry resulting in pleasure seeking behavior (i.e., opioid use) without regard to consequences. We also discussed the fact that the brain of a person in recovery will require several months of sobriety to initiate the re-wiring process, and that process may take as long as two years – which is a long time in the employment context.

In addition to the brain re-wiring issue, it is important to note that virtually anyone suffering from a form of addiction has unresolved underlying mental health issues of one variety or another. The nature and seriousness of such mental health issues directly affects the drug rehabilitation treatment program and process. In other words, rehabilitation that focuses solely on the addiction issue but does not also treat the underlying mental health issues is inevitably destined to fail. Such mental health conditions on their own are almost inevitably FMLA-qualifying serious health conditions and ADA-protected disabilities – such that they need to be appropriately analyzed and integrated into any employment related decision-making processes regarding the addicted employee in the recovery process.

FMLA and ADA Basics

Both the FMLA and ADA regulations address substance abuse treatment, so employers need to contemplate these potential protections and liability exposure issues when navigating a rehabilitation process, especially if discipline or termination is on the immediate horizon.

For employers covered by the FMLA who are dealing with an eligible employee, 29 CFR 825.119 addresses a leave of absence for substance abuse. Generally, time spent in a rehabilitation program with "a health care provider or provider of health care services on referral by a health care provider" is an FMLA-qualifying event. Conversely, absence based on an employee's use of drugs rather than an absence for treatment of that usage is not an FMLA-qualifying event. Depending upon the specific circumstances, an employer may still legally impose discipline or terminate an employee who is on FMLA leave and in a rehabilitation program - "if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse." However, an employer cannot retaliate against an employee who has exercised his/her rights to seek FMLA leave for rehabilitation.

Under the ADA, the "terms disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs." 29 CFR 1630.3(a). However, per 29 CFR 1630.3(b), the terms disability and qualified individual with a disability may not exclude an individual who:

1. Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs; or
2. Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
3. Is erroneously regarded as engaging in such use but is not engaging in such use.

These provisions of the ADA do not prohibit employers from developing and implementing "reasonable policies and procedures, including but not limited to drug testing" to ensure that an employee with an addiction issue that qualifies as an ADA-protected disability "is no longer engaging in the illegal use of drugs." 29 CFR 1630.3(c).

Both the FMLA and ADA prohibit discrimination and retaliation against employees who are protected by these laws. The FMLA contemplates a right to job reinstatement in certain circumstances. Under the ADA, not only is an employer prohibited from discriminating against an employee based on his/her addiction (assuming they are not currently using), but employers are likewise prohibited from discriminating against such an employee based on the employee's "record of" addiction or because the employee is "regarded as" disabled based on their addiction.

Complicating the analysis are the myriad of city and state requirements on testing for drug usage. Some of these laws may potentially limit what an employer is permitted to do in response to a scenario in which an employee discloses an addiction issue. Moreover, not all employees are created equal in this regard. Employees holding safety-sensitive positions (e.g., police, first responders, equipment operators, employees working with or on machinery, certain medical professionals, etc.) will almost certainly be held to higher and more rigorous standards than employees who are not in safety-sensitive positions. In these scenarios, their drug usage may pose a "direct threat" to the safety and wellbeing of themselves and others.

As you can see, the corresponding legal issues related to addiction and accommodations can get very complicated, very quickly. Each scenario must be analyzed based on its own factual specifics considering the applicable laws and regulations. And given the ongoing trend of opioid usage, addiction, and the resulting record-breaking number of overdose deaths in the U.S., employers of all varieties will encounter such scenarios more frequently than in the past. This is an area where legal guidance is strongly recommended.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.