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QBB Review: What employers should know—but often don’t—about employee substance abuse

May 10, 2017

Many employers believe that alcohol and substance abusers are primarily unemployed or unemployable.  Data shows the opposite.  Indeed, one study estimates that 90 percent of alcoholics and 74 percent of drug addicts are employed.  Recent studies also demonstrate that 8.7 percent of full-time U.S. workers ages 18 to 64 are heavy drinkers, and 8.6 percent of these workers used illegal drugs in the past month.  The upshot, for employers, is that alcohol or substance abuse is almost certainly affecting, or has recently affected, at least one—if not more—of your employees.

Some employers consider alcohol and substance abuse to be a private matter best left to the employee and his or her family. 

However, 40 percent of industrial fatalities and 47 percent of occupational accidents are linked to substance abuse.  And, drug dependent workers use twice the amount of healthcare benefits and are five-times more likely to file a workers’ compensation claim. 

Even putting aside these statistics, the impact of substance abuse on employee morale and productivity can be severe.  In short, ignoring the problem and hoping it will go away is never the answer.

In our current Quarterly Breakfast Briefing (“QBB”), we are discussing several issues related to and impacted by workplace substance abuse.  To begin, we explain how employers can identify the signs, symptoms and effects of commonly abused substances.  For example, most employers are aware of the recent heroin and opioid epidemic, but many may not understand the subtle and important differences between these drugs. 

We also discuss several familiar federal laws, such as the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”), and several not-so-familiar laws, such as the OSH Act and the Drug-Free Workplace Act.  The interplay between these statutes and workplace substance abuse is of critical importance. 

For example, many employers may not know that the Occupational Safety and Health Administration recently has cast a critical eye on post-accident drug testing.    

Additionally, many employers may be unaware that the U.S. Department of Labor considers leave to seek treatment for substance abuse to be (in some circumstances) a “serious health condition” covered by the FMLA.  Employers may also be uncertain whether an employee’s struggle with illegal substances qualifies for protection under the ADA. 

Finally, we discuss steps employers can take to de-escalate substance abuse-related crises in the workplace and how to prevent them from happening in the future.  The goal is to create a drug-free workplace and to draft an effective drug-free workplace policy.

For more information or assistance with any substance abuse issues in the workplace or with drafting or revising your substance abuse policies, please contact any member of the Nexsen Pruet Employment and Labor Law Group