News & Updates

"Federal Laws Applying to Opioid Use and Addiction," Construction Executive February 2, 2018

An opioid crisis is gripping the nation, and “no one is immune”: “[W]hile addicted individuals and their families pay the highest price,” Goldberg Segalla partner Shannon O’Connor writes, “employers bear a significant part of the epidemic’s collective burden.”

“Data shows that, statistically, every adult American knows at least one member of the workforce who has been injured at work, was involved in an accident or underwent hospitalization, and has been prescribed pain medication — likely an opioid — to use while on the job,” Shannon explains in an article for Construction Executive. “The unprecedented number of employees across the nation using prescribed (or non-prescribed) pain medications in workplaces has created a host of problems for employers.”

Many of these problems stem from inherent tensions between the employer’s interest in providing a safe and drug-free workplace, and the employer’s obligations under federal laws and regulations. The Americans with Disabilities Act (ADA), for example, “prohibits an employer from discriminating against a qualified employee with a disability in the terms, conditions, and privileges of employment.” Aside from employing language problematically broad and nebulous, “The ADA provides exclusions to protect many individuals who formerly used drugs illegally, and individuals who are recovering from such illegal use or addiction.”

Other laws also generate conflicts and burdens for employers. The Family and Medical Leave Act (FMLA) entitles employees to “up to 12 weeks of unpaid leave during a 12-month period because of a serious health condition or to care for an immediate family member with a serious health condition.” According to Department of Labor (DOL) regulations, “treatment for substance abuse might meet the definition of a serious health condition if the condition requires inpatient care or continuing treatment by a health care provider.” Likewise, the Occupational Safety and Health Administration (OSHA) “recognizes the importance of maintaining a drug-free workplace in the promotion of employee safety,” but also mandates “that any drug testing program must balance employee privacy interests with the employer’s interest in workplace safety.” Because of these contradictions and tensions, “Human resources personnel need to tread carefully through a patchwork of complicated federal laws and regulations, as well as each employer’s internal protocols, while navigating difficult and often emotional conversations with employees.”

“If employers are not careful, allegations of discrimination and increased exposure to liability may result if companies turn a blind eye to the prevalence of opioid abuse,” Shannon concludes. “Considering the complexity of this issue, employers should consult with human resources personnel early and often, and seek advice from legal counsel on how to navigate the patchwork of applicable laws.”

Read the article: