Dealing with hidden disability: Navigating protections for workers with addictions

June 18, 2017 - by: Tammy Binford 0 COMMENTS

Employers generally understand their obligations related to legal protections for people with disabilities. But not all disabilities are obvious, sometimes not even to those afflicted. Such may be the case when employees suffer from addiction to prescription drugsa problem that’s been in the spotlight lately. And with good reason: The costs employers face related to such addictions are staggering.  Medicine sales man rep offering pills

For example, an analysis released in March claims that healthcare costs for employees who misuse or abuse prescription drugs are three times the costs for an average employee. The analysis is from the National Safety Council, independent research institution NORC at the University of Chicago, and Shatterproof, a nonprofit organization working to end the stigma of addiction and support families dealing with it. The groups have developed a Substance Use Cost Calculator to help employers understand the impact of addiction on their business.

The researchers found that just 39 percent of employers see prescription drug use as a threat to safety, and only 24 percent feel it is a problem, despite 71 percent saying they have experienced an issue. The study also says the cost of untreated substance use disorder ranges from $2,600 per employee in agriculture to more than $13,000 per employee in the information and communications sector. On a more hopeful note, the research found that workers in recovery have lower turnover rates, are less likely to miss work, are less likely to be hospitalized, and have fewer doctor visits.

Understanding ADA implications

Employers often want to help their employees with addictions, but they also have to protect their business. Sometimes it’s tricky trying to do both, but it doesn’t have to be impossible.

The task starts with an understanding of an employer’s legal obligations under the Americans with Disabilities Act (ADA), which offers protections to employees with disabilities. Jonathan Mook, an attorney with the DiMuroGinsberg law firm in Alexandria, Virginia, reminds employers that an individual addicted to prescription drugs may or may not be disabled under the definition of disability in the ADA.

An individual legally using prescription drugs may have a disability under the ADA “assuming that the addiction would be diagnosed by a healthcare provider as a physical/mental impairment that substantially limits one of the person’s major life activities,” Mook says. “The analysis for determining whether an individual’s addiction, in and of itself, constitutes a disability is no different from the analysis of other types of medical impairments.”

Employees who are illegally using prescription drugs have no protection under the ADA since illegal use of drugs is exempted from the definition of disability.

Mook also points out that someone who has been prescribed drugs because of another medical problem, such as a bad back or bad knees, may have a disability because of that impairment along with or instead of a disability related to drug use.

What employers should do

If an employer learns of an employee’s addiction, the employer should be cautious about taking adverse action against the employee. “Generally, an employer should take a job action based upon job performance issues only, not because of the medical condition of an employee,” Mook says. “If the employee has not exhibited any difficulties performing his or her job and the employee is not in a safety-sensitive position, then I would counsel the employer to refrain from taking any job action against the employee.”

Mook says employers that offer an employee assistance plan or healthcare insurance that covers addiction may want to remind an employee of those options, but the employer shouldn’t require the employee to obtain treatment as a condition of continued employment since the Equal Employment Opportunity Commission “takes the position that an employer should operate as an employer, not as a social service agency or medical doctor in dictating an employee’s medical treatment.”

If an employee tells an employer of an additionand the addiction qualifies as a disability under the ADAthe employer must work with the employee to see if a reasonable accommodation can be found to enable the employee to continue working, Mook says. An example of such an accommodation is an unpaid medical leave for treatment.

If the employer is concerned that an employee’s addiction presents a safety problem, the employer may require the employee to undergo a fitness-for-duty examination by a healthcare professional of the employer’s choice, Mook says. Depending on what the exam reveals, the employer can take a job action if the employee’s addiction is likely to cause a safety problem.

Documentation and testing

When employers need to take action against employees with a drug addiction, documentation is critical. Sometimes an employee’s behavior causes a supervisor or coworker to suspect that the worker is under the influence at work. In such cases, the observations need to be documented.

“Based upon these observations, the employer may require the employee to undergo a drug test to determine whether the employee has prescription drugs in the employee’s system and, if so, whether the employee is legally taking those drugs,” Mook says.

If an employer has informationeven secondhand from a coworkerthat an employee appears to be under the influence in a safety-sensitive position, the employer is entitled under the ADA to require a drug test based on reasonable suspicion, Mook says.

“Under the ADA, random drug testing for the illegal use of drugs is permitted,” Mook says. “However, if the drug test includes inquiry into the legal use of prescription drugs, then the employer can do so only if the testing is job-related and consistent with business necessity, which normally would arise only in a safety-sensitive position.”

Taking action against an employee

Sometimes, despite accommodations provided by the employer, employees with addictions will refuse to get treatment and their job performance continues to suffer. In such a case, the employer may take a job action, including termination, based on the performance issues but not on the employee’s failure to get treatment, Mook says.

“In such a situation, the employer needs to be careful to adequately document the employee’s performance problems so it is clear on what basis the employer is acting,” Mook says.

Need to learn more? Jonathan Mook will be presenting Invisible Disabilities: What’s Protected Now, What Isn’t, and How to Provide ADA-Compliance Accommodations at the Advanced Employment Issues Symposium (AEIS) in Las Vegas in November. Jonathan will discuss the types of protections employees with “invisible disabilities” may be entitled to under ADA, accommodations  for someone undergoing treatment for a mental health-related condition, when such accommodations would likely be or not be deemed undue hardships based on federal case law, managing day-to-day productivity and communication, dealing with concerns that an employee’s medication  could pose workplace safety risks, best practices for dealing with employees struggling with addiction to drugs or alcohol, and more.

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