The opioid crisis has led to significant challenges for Americans, and employers are not immune. Some have noted the crisis as being one of the greatest challenges currently facing the country. It has been documented that nearly as many Americans (50,000) died of opioid-related overdoses in the last year alone as Americans who died in the Vietnam War. The use of prescription opioids to relieve pain has risen to staggering levels, with sales of prescription painkillers having more than quadrupled since 1999.

A recent study estimated that deaths from opioid abuse are costing employers over $25 billion a year in lost time, productivity and earnings. The increased use – and misuse – of opioids has led to more time lost from work, as well as increased medical costs and workplace injuries. Opioid abuse has also increased public health and criminal justice costs. The level of abuse has tragic consequences across the nation, ravaging communities and tearing families apart.

How are employers dealing with the crisis?

Companies, both large and small, have been forced to deal with the significant impact of the opioid crisis on the workforce. The crisis has amplified the labor shortages that are being experienced in the current economic climate. Employers are finding that workers are reluctant to take, or are unable to pass, pre-employment drug screens. In fact, an increasing number of companies have chosen to forego testing programs. Companies are also faced with the dilemma of how to address disciplinary issues involving current employees who work under the influence of prescription opioids. But the decision to curtail or eliminate pre-employment drug tests raises the issue of potential future liability for workplace accidents involving the employee, co-workers and third parties. Indeed, many employers are required by state and federal law to perform drug testing. Each employer should consider these liability issues before adopting any changes, and carefully consider the potential consequences.

Although no perfect response is available to address the problem, many employers are taking time to review and rethink their policies. Many are providing drug education and counseling programs in order to keep employees and the workplace safe.

There are also other practical steps to address the issues presented by opioid use in the workforce, including:

Create an environment where employees are likely to disclose opioid-related issues 
Employers can start by creating a workplace environment conducive to the free exchange of information. This is an evolving area of human resources and business management; you must balance privacy concerns of the employees with the ramifications of ignoring the larger issue, including employee absenteeism, overdoses, or safety or liability concerns. Workplace education is also an important factor. A key to preventing opioid addiction among your workforce is educating employees on the harmful effects of abusing painkillers. In addition to providing information about the dangers involved in the abuse of opioids, employers should reach out to employees when appropriate to offer assistance.

Reconsider zero tolerance drug testing failure policies 
An employee who loses their job because they fail a drug test may fall further into the depression often caused by opioid use. Unemployment may lead to more drastic outcomes for the employee, including intentional or accidental overdose. To avoid such a tragedy, many employers are revisiting their zero tolerance drug testing policy. These changes start with a clear explanation of the company’s policy on the permitted use of prescription drugs while working. The changes may also include removing any provision requiring the automatic termination of the employee after the first positive drug test. Employers are looking to provide mandatory counseling for employees who fail drug tests, as opposed to outright termination. This not only gives the employee a second chance to get “clean” and attempt to end their dependency, it also provides benefits to the employer in employee morale, and the opportunity to maintain relationships with valuable employees.

Conclusion

Although opioid use continues to increase at an alarming rate, many employers have not yet addressed this concern in their policies and programs. There is no perfect plan currently available, but working with counsel to take proactive steps and avoid risks to your employees is a good place to start.

As a cautionary note, communications and action in this area involve some legal dangers and concerns. Accordingly, companies should consider consulting with legal counsel to navigate any potential Americans with Disabilities Act (ADA), Health Insurance Portability and Accountability Act (HIPAA), or other legal issues.