While much has been done to combat opioid abuse, the increasing prevalence of opioid and other drug use make it more likely that an employer will have to deal with drug addiction issues in the workplace. So what can employers do about substance abuse? Below are 5 best practices employers can use when dealing with these issues in the workplace.
Have a written substance abuse policy.
It is important to have a clear and comprehensive written policy prohibiting the use of illegal drugs in the workplace. A policy could include a drug testing provision. Drug testing is generally permissible if applied on a consistent, non-discriminatory basis. Clear consequences for violating any part of the policy should be included. It is important to make sure the policy is understood by all employees and supervisors and that it is applied uniformly.
Train supervisors and managers.
Supervisors and managers should be trained to spot warning signs of illegal drug use, take appropriate action and document any suspicious behavior or actions taken. Additionally, supervisors and managers should be trained on the employer’s substance abuse policy, including when and what disciplinary action is appropriate. Training will also help to ensure the substance abuse policy is applied uniformly to all employees.
Impose and enforce performance standards.
Employers may always prohibit the use of illegal drugs, as well as legal drugs used illegally in the workplace. Employees who use illegal drugs may also be required to meet the same performance standards set for other employees. So long as an employer would also discipline non-disabled employees for engaging in the same misconduct, the employer is not obligated to tolerate misconduct because it is the result of illegal drug use.
Provide reasonable accommodations when needed.
If a recovering addict is covered by the The Americans with Disabilities Act (ADA) and/or New York Human Rights Law (NYHRL), employers are generally required to provide reasonable accommodations for the employee’s condition, such as time off for medical care, self-help programs, or other work schedule adjustments that allow for ongoing treatment, provided the accommodations do not pose an undue hardship to the employer. Proving an undue hardship can be difficult and employers should consult counsel prior to denying an accommodation based on an undue hardship.
An employee can be discharged based on current use of illegal drugs.
The ADA specifically excludes current users of illegal drugs from the definition of qualified individuals with disabilities. The New York State Division of Human Rights, the agency responsible for enforcing the NYHRL, has issued similar regulations stating current users of illegal drugs are not protected under state law. Because individuals who currently use illegal drugs are not protected by federal or state law, an employer may discharge or refuse to hire an individual based on his or her current drug use. However, a rehabilitated drug addict may be protected as an individual with a disability depending on the circumstances.
The issues surrounding substance abuse in the workplace are often complex and difficult to navigate. With several applicable bodies of law, it is important for employers to understand what can and cannot be done when it comes to an employee dealing with drug addiction. It is important for employers to take appropriate action for the health and safety of both the affected employee and the rest of the workforce.
To learn more, don’t miss the Partnership’s upcoming event: The Employers Guide to Substance Abuse. You’ll learn about:
- The prevalence of substance abuse in the workplace;
- Treatment options and how employers can support employees in recovery;
- The employer benefits of implementing prevention programs;
- What the law says about substance abuse, including an overview of the ADA, FMLA, and the Paid Family Leave Act; and
- How to create policies and procedures that are right for your company.
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Erin Torcello is a labor and employment attorney at Bond, Schoeneck & King, where she works closely with her clients as a strategic business partner to provide practical solutions to complex legal issues in the workplace.
Disclaimer: The above commentary details the views of the author and not necessarily the views of the Buffalo Niagara Partnership.