alcoholism, substance abuse, and mental health issues in ... ogletree... · crosses broad spectrum:...

Alcoholism, Substance Abuse, and

Mental Health Issues in the Workplace

.

Presented by

Lara C. de Leon

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com

Atlanta / Austin / Berlin / Birmingham / Boston / Charleston / Charlotte / Chicago / Cleveland / Columbia / Dallas / Denver / Detroit (Metro) / Greenville / Houston / Indianapolis / Jackson / Kansas City

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Pittsburgh / Portland (ME) / Portland (OR) / Raleigh / Richmond / Sacramento / San Antonio / San Diego / San Francisco / Seattle / St. Louis / St. Thomas / Stamford / Tampa / Toronto / Torrance / Tucson / Washington, D.C.

Overview

◼ Addiction and Mental Health Concerns

◼ Common Workplace Issues

⚫ Testing

⚫ Leave and Accommodation

⚫ Conduct

◼ Takeaways

Addiction and Mental Health

Concerns




Prescription Drug Abuse – A National Epidemic

◼ 70% of Americans use at least one prescription drug and 50% use at least two

⚫ One in three takes a prescription opioid

◼ CDC: More people die every year from prescription painkillers than from heroin

and cocaine combined

◼ October 26, 2017: The opioid crisis is declared a nationwide public health

emergency




Prescription Drug Abuse – A National Epidemic

◼ Crosses broad spectrum: Age, sex, ethnicity, economic status

◼ Wide availability – legally and otherwise

◼ Opiates highly addictive and lethal

◼ Prescription drug abuse corresponds with increase in cocaine and

amphetamine abuse and dramatic increase in marijuana use (Quest

survey)




Marijuana is a Nationwide Concern

◼ Over 70% of Americans live in states permitting at least some

marijuana use

◼ 9 more states close to full legalization




Texas - Medical Marijuana

◼ Specialty doctors are able to prescribe medical marijuana to treat:

⚫ Multiple sclerosis,

⚫ Parkinson's disease,

⚫ ALS,

⚫ Terminal cancer,

⚫ Autism, and

⚫ Certain seizure disorders

◼ No smoking! Only in oil and inhaler forms.




Marijuana Types

◼Joints

◼Bongs

◼Edibles

◼Beverages

◼CBD products

◼Hemp-based products




Alcoholism

◼ Nearly 14 million Americans (1 in every 13 adults) abuse alcohol or are

alcoholics.

◼ According to one study, nearly ¼ of workers surveyed said they drank

during the workday

◼ Estimated costs to the workplace: $33 - $68 Billion per year

⚫ Absences

⚫ Lost productivity

⚫ Injuries and accidents




Mental Health - Part of the Human Condition

◼ In 2018, roughly 1 in 4 adults in the US experienced a mental health

disorder

⚫ 50% of persons with addiction disorders

◼ In 2018, less than one-third of people with a mental health disorder

received the treatment they needed

◼ Over the last 5 years, employers’ behavioral health expenses have

increased more than 10% annually, compared with a 5% increase

annual for other costs




Mental Health – Workplace Impact

◼ #1 cause of disability in the U.S.

◼ Up to 40% of sick leave

◼ Major depressive disorder*

⚫ $210.5 B per year (up 21.5% since 2005)

⚫ Which is more than the impact of heart disease, stroke, cancer and obesity.**

⚫ 16 M people

◼ For every $1 direct cost = $1.90 indirect*American Psychiatric Association: Center for Workplace Mental Health

** Journal of Occupational and Environmental Medicine (April 2018)

Common Workplace Issues




Applicable Federal Laws

◼ Occupational Safety & Health Act - General Duty Clause

◼ Federal contractors & grant recipients

⚫ Must prohibit the use of marijuana to participate

⚫ Drug-Free Workplace Act requires good faith efforts

◼ DOT guidelines prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs (i.e., pilots, bus and truck drivers, subway operators, ship captains, and transit security).




Americans with Disabilities Act

◼ Prohibits discrimination based on

⚫ Current disability

⚫ Past (record of a) disability

⚫ Perceived disability

⚫ Association with an individual with a disability

◼ Regulates medical examinations/inquiries

◼ Requires reasonable accommodations




ADA Coverage of Mental Health Conditions

◼ Disability is usually very fact specific, individualized

◼ The EEOC has identified certain mental health conditions as per se disabilities:

⚫ Bipolar disorder

⚫ Post-traumatic stress disorder

⚫ Obsessive-compulsive disorder

⚫ Schizophrenia

⚫ Major depressive disorder




ADA Coverage of Drug and Alcohol Addiction

◼ Individuals currently using drugs illegally are not protected

◼ Individuals who drink alcohol but are not addicted are not protected

But …

⚫ Past drug addiction of any kind covered disability; so questions about past

drug addition/treatment = medical inquiries

⚫ Alcoholism, addiction to lawfully-used medications are disabilities




Regarded As Disabled

◼ Individual does not need to have an actual disability.

◼ Individual just needs to be perceived as being disabled.

◼ Employers need to be careful not to assume that the employee cannot do the

job based on perceived disability

◼ Only ask for medical documentation if the medical condition impacts the job.




ADA – Regarded as Disabled

◼ Attempts to address drug or alcohol

problem may give rise to perceived

disability claims

◼ Attempts to proactively address mental

health concerns may give rise to

perceived disability claims

◼ But ignoring the problem can give rise to

other legal and business risks

Testing




ADA and Medical Inquiries

◼ General Rules:

⚫ Employers are prohibited from asking questions that are likely to

reveal the existence of a disability before making a job offer

⚫ Such questions and medical examinations are permitted after

extending a job offer but before the individual begins work

⚫ Must ask the same questions of other applicants offered the same

type of job.




What Does This Mean?

✓ Questions about legal drug use/current medications are likely to elicit

information about disability => therefore impermissible at pre-offer

stage

✓ Test for illegally-used drugs is not medical examination

✓ After a drug test, employers may ask about current legal drug use that

may explain a positive drug test

✓ Alcoholism is a disability, so employers cannot ask how much alcohol

someone drinks




Suspicious Behavior

Sal’s colleagues noticed that Sal returned from lunch smelling of alcohol

and slurring his speech. They contacted the local nurse. The nurse

spoke with Sal, who admitted that he had been having problems at home

and was drinking in his car during the lunch hour. The nurse said that Sal

asked the nurse for help.

How should you proceed?




Options:

1. Discuss reasonable accommodations with Sal.

2. Require Sal to go for an alcohol and drug screen at a laboratory.

3. Terminate Sal for drinking on the job.

4. Require Sal to enroll in the EAP or be terminated.




Reasonable Suspicion – More Than a Hunch

⚫ Demeanor

⚫ Eyes

⚫ Reactions

⚫ Appearance of clothing

⚫ Gait and stance

⚫ Expressions

⚫ Speech




EEOC and Prescribed Drugs

◼ The EEOC has brought claims against employers for policies that

provide blanket prohibition against prescription drug use

◼ Recently, the EEOC has brought claims against employers even for

policies requiring employees to report prescription drug use; no

dispositive court decisions




EEOC and Prescribed Drugs

◼ Employer withdrew job offer after plaintiff failed pre-employment drug test for use of lawfully prescribed hydrocodone for neck/back pain.

◼ Employee with carpal tunnel syndrome fired for refusing to disclose every medication that could affect her job.

◼ Employer rescinded job offer to recovering drug addict who was enrolled in a supervised medication-assisted treatment program and disclosed taking medically prescribed suboxone (used to treat opioid dependence) during post-offer physical.

Leave and Accommodation




ADA and Reasonable Accommodations

◼ Alcohol or Other Drug Abuse

⚫ Modified work schedule/leave of absence for rehabilitation, support group meetings

⚫ Not required to “accommodate” medical marijuana – except in AR, AZ, CT, DE, IL, ME, MN, NV, NY, OK, PA, RI

◼ Mental Health

⚫ Flexible scheduling or modified break schedules

⚫ Special break locations

⚫ Removal of environmental triggers (noises or smells)

⚫ Use of service animals




FMLA and Substance Abuse

◼ Substance abuse may be a serious health condition

◼ Leave permitted for treatment

◼ Leave not permitted for use

Conduct Issues




What about Misconduct?

◼ Employer can typically discipline disabled employee for misconduct, even where misconduct resulted from the disability, where rule is job-related and consistent with business necessity

⚫ Employer can maintain violence-free workplace, prohibit theft, prohibit destruction of property, etc.

◼ HOWEVER, some courts have found ADA violations where misconduct caused by disability




When Performance Is Impacted

Steve tells his manager he has ADHD and has trouble remembering what

happened in meetings. The manager thinks that this is part of his job and

not something the company can or should have to accommodate.

What is your best option?




Options:

1. Require Steve to submit to psychological testing to confirm the ADHD

diagnosis.

2. Permit the manager to discipline Steve for poor performance.

3. Require the manager to engage in a dialogue with Steve about

possible accommodations.

4. Require Steve to provide a doctor’s note and recommended

accommodations.

Takeaways




Key Takeaways

◼ Establish and communicate clear drug and alcohol policies

⚫ Have a testing process administered by professionals

⚫ Beware ADA risks in drug tests positive for Rx drugs

⚫ Marijuana legalization ≠ accommodation

◼ Leave and accommodation

⚫ Usage vs. recovery

⚫ Consider Last Chance Agreements

◼ Education - reasonable suspicion, EAP resources

Alcoholism, Substance Abuse, and

Mental Health Issues in the Workplace

.

Presented by

Lara C. de Leon

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com

alcoholism, substance abuse, and mental health issues in ... ogletree... · crosses broad spectrum:...

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