SAN DIEGO — Employers who have workers with substance abuse problems, or suspect a problem, need to tread carefully to ensure they are not violating the Americans with Disabilities Act, experts say. 

With more than 75% of employers stating that they have been affected by an employee’s substance abuse issue, employers need to know how to respond appropriately if an employee comes to them or they discover an opioid issue, said Dr. Thomas Hysler, chief medical officer for the Houston Area Safety Council in a session Tuesday at the National Safety Council Congress & Expo in San Diego.

In 2016, more than 42,000 individuals in the United States died as a result of opioid abuse, and that number has been steadily increasing since 2002, said Russell Klinegardner, chief operating officer of the council.

With one out of every three individuals on opioids and potentially addicted as a result, employers need to look at their work areas and what types of hazards these employees could be encountering, said Mr. Klinegardner. 

“It’s important to know and be aware of what (employees) are on,” but it is often difficult to tell, he said.

For example, opioids can be obtained in nasal spray bottles that look like typical allergy spray, patches that look like those for quitting smoking, and even lollipops.

When employees are taking opioids, employers are challenged in handling the situation, said Dr. Hysler.

The ADA protects workers who have successfully completed a rehab program and have stopped taking the drug that caused them to enter the substance abuse program, or if an individual is currently in a rehab program, said Dr. Hysler. The ADA also protects a worker who has been wrongly accused of having a substance abuse problem, he noted.

The challenge for employers is knowing the difference between an employee who may have been taking one Vicodin every day for years for pain but continues to do a great job, or someone who needs treatment.

“Oftentimes you’re not going to know if (an employee) is taking opioids unless they come to you and admit that they’re taking them … or if the (medical review officer) notifies you” of a positive opioid result on a drug test for which they have a prescription, said Dr. Hysler.

One way employers can help identify workers who are taking opioids is requiring that employees disclose if they are taking prescription medications that may cause an impairment, which is allowed by the Equal Employment Opportunity Commission so long as it is a companywide policy, he said. Another way an employer may discover potential opioid issues is through the medical review officer who reviews employee drug tests, who Dr. Hysler said has the responsibility to tell employers if a worker tests positive for an opioid with a valid prescription if there may be a safety risk involved.

If employers believe a worker either has an opioid problem or is taking a medication they believe could be creating a safety risk, they need to go through the ADA’s interactive process, he said. This includes having a discussion with the employee to find out whether a concession can be made that will enable the worker to remain an employee and not cause an undue hardship for the company, said Dr. Hysler.

“It may be restructuring their job, offering a leave of absence – paid or unpaid – to allow them to get the treatment they need, a modified schedule, modified policies, or reassignment to a vacant position that the employee is qualified for,” he said.

An employer can claim that making an accommodation may create an undue hardship, but those lawsuits are very difficult to win, Dr. Hysler said.

Another challenge for employers is helping an employee who has successfully been weaned off opioids to return to work.

“You have to feel 100% confidence that the employee is ready to come back … otherwise the stigma is going to be there and the employee is not going to have success in coming back to work,” he said.

Employers should seek a fitness for duty exam and have a frank conversation with the physician performing the exam about what the employee’s past issue was, what the job responsibilities are and what the company’s concerns are about bringing the employee back to work, he said.