Executive Summary: This is Part 4 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 the 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. Our February 26, 2024 Alert (Part 3) focused on navigating the rehabilitation process. This Alert (Part 4) is the final in this series and focuses on the relevant workplace safety issues associated with addiction.

Workplace Safety—The Big Picture

Workplace safety is critically important—for a lot of reasons, especially in today’s world where social division and political dysfunction seem to be the norm. Those toxins inevitably permeate our workplaces and create the potential for an unsafe environment. Some work is by its very nature inherently dangerous. Other work, not so much. Given the high-water-mark levels of mental health, suicide, workplace violence, and addiction in our society, employers in all industries face many challenges in trying to provide a safe workplace.

Legally speaking, the OSHA General Duty clause mandates that an employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). Many states have similar legal requirements. Consequently, creating a safe workplace is legally mandated, and a failure to do so creates legal liability exposure.

Practically speaking, the competition to attract, recruit, and retain talent is as fierce as ever—especially since many people have figured out ways to earn a good living working for themselves and don’t want to work for someone else. A workplace that is unsafe and/or has a reputation for being unsafe simply will not succeed in recruiting and retaining talent (or not the best talent available) in this environment.

Workplace Safety—The Basics for Success

The bedrock of workplace safety is founded on a culture that is fully committed to creating and maintaining a safe workplace—i.e., where the leadership walks the walk and requires everyone else to do so. Legally compliant and readily understandable policies are obviously necessary. There are multiple policies that are useful in creating and maintaining a safe workplace, including, among others, a workplace safety policy (setting forth the leadership’s expectations), a drug/alcohol testing policy, a behavioral expectations policy, a no-weapons policy, and a workplace violence policy. Also relevant with respect to addiction issues are an FMLA policy (if applicable), a medical leave of absence policy, and a disability accommodation policy.

Unfortunately, it is not uncommon for employees to report to work under the influence of drugs or alcohol. Regardless of industry, such behavior creates an undue risk of harm in the workplace, both to that employee and co-employees. It can also create a risk to the public, especially if that employee is driving to or from work, operating equipment, or driving as part of his/her job duties while under the influence. Further considerations in this regard were outlined in detail in the initial Alert published on June 12, 2023.

Recommendations Regarding Addiction Issues and Workplace Safety

As stated above, the key to mitigating such safety risks begins with a credible commitment to a safe workplace. Additionally, supervisors and managers need to be fully educated on the relevant safety expectations. The key is to be engaged with their employees, so that when an employee gets off track in terms of attendance, performance, or behavior, it is addressed in a timely and appropriate manner. If a supervisor or manager has established appropriate personal relationships with those employees for whom he/she is responsible, there is an exponentially greater chance that an employee struggling with an addiction issue may tell the supervisor or manager about the issue before their employment is in jeopardy and/or they injure themselves or others.

Simply put, supervisors and managers need to know what is expected of them in this regard. Further, they must have a backbone such that they can timely engage in positive conflict (i.e., effectively addressing issues in a timely manner) and they drive such issues to an appropriate resolution (with the help of their Human Resources team).

The Current Reality and the Return-to-Work Process

The current reality is that our society has seen an enormous increase in mental health issues post-COVID. The opioid addiction crisis which has been building steam since the late 1990’s is now an epidemic of crisis proportions with no end in sight. Alcohol abuse also continues to be an enormous problem. Accordingly, employers are very likely to encounter scenarios in which employees with mental health and/or substance abuse issues are reporting to work and are not safe, as they pose a risk of harm to themselves and others. Unfortunately, many times employees with drug and alcohol addiction issues engage in unsafe or inappropriate behavior (or otherwise have attendance and performance issues) which lead to termination before they seek assistance.

Being prepared to navigate these inherently difficult issues in a timely and effective manner is necessary. Consistently applying the company’s stated policies and procedures across the organization is imperative for overall effectiveness and legal liability exposure mitigation. To the extent possible, achieving consistency of application is likewise important, but may not be as realistic in many scenarios involving mental health and addiction issues given the individual specifics of each such scenario. Creating a defined and individually tailored return-to-work plan (which is fully documented) is necessary. Such programs should contemplate periodic one-on-one meetings with a manager and/or HR and potentially require drug testing across a defined time period (depending on state law, as well as any applicable regulatory requirements). Formalized structure and accountability are critical aspects of any such program and lead to a much better chance of sustained recovery, as well as a safer workplace.

As a general proposition, an employee who has successfully completed a rehabilitation program and is no longer using alcohol or drugs has a legally protected disability under the Americans with Disabilities Act. Managing that employee in alignment with the applicable company expectations and the return-to-work agreement requires a collective effort. However, different states have different legal requirements in this regard, so it is necessary to analyze this issue on a state-specific basis.

Wrap-Up

The mental health and addiction issues we face as a society are at high-water-mark levels and are not going away anytime soon. Employers should educate themselves as best they can now, have a plan on how to respond, and when an issue arises, timely seek appropriate professional assistance, including from mental health professionals, medical professionals, and appropriately skilled employment law defense attorneys. As previously indicated, see something, say something, do something.