Lobbying Affiliate: MML&K Government Solutions

Impaired employees: Every employer has them! , HR the human resource, Oct-Nov 2010, Volume 3, Issue 5

By Lisa English Hinkle, Luke A. Wingfield and Jaron P. Blandford

Special thanks to Gina Riddell, Paralegal

Most of the people who use illegal drugs in the United States and approximately 15 million heavy drinkers hold full-time jobs where they pose serious problems for the health, well-being and productivity of everyone around them. Abuse of prescription drugs has become an epidemic in the United States and particularly in Kentucky. Substance abuse and addiction are two of the most serious public health problems facing Americans. The 2009 National Survey on Drug Use and Health reports that Americans' illicit use of drugs increased by almost 1 percent just between 2008 and 2009 and projects that 8.7 percent of all Americans use drugs illegally. An even greater concern for employers is the fact that 77 percent of all Americans 18 and over who use illicit drugs are employed (Source: U.S. Department of Health and Human Services).

The increase in drug use has been attributed to increasing consumption of prescription drugs, marijuana and methamphetamines. With a shifting pattern of drug use from illicit street drugs to prescription drugs, this epidemic creates serious problems for every employer. As the drug problem becomes more prevalent and is often disguised when prescribed drugs are abused, employers must have effective drug-free and substance abuse workplace policies. Now more than ever, employers must have policies that are consistent with state and federal laws and must uniformly communicate and enforce those policies.

Employers must handle employees who have substance abuse or addiction issues carefully, but decisively, as impaired employees create huge risks for employers. Impaired employees affect everyone around them. As the Director of National Drug Control Policy John Walters said, "Employees who use drugs miss work more often, are less healthy, and are more prone to harming themselves and others in the workplace...We hope that employers will take note of this report and consider implementing workplace drug testing policies that can help prevent drug use before it starts, help identify drug-using employees who need drug treatment services and also reduce employers' liability from drug-related workplace accidents." To address substance abuse in the workplace, employers must implement strong and effective workplace policies. These policies must be carefully crafted to be consistent with state and federal law as improper treatment of impaired employees can create potential liability for claims of uneven treatment, discrimination, invasion of privacy, HIPAA violations, defamation and wrongful discharge. For example, under the Americans with Disabilities Act ("ADA"), a recovered alcoholic or drug addict may be considered to have a disability that is protected.

When implementing policies for a drug-free workplace, employers must assure that their policies comply with applicable state and federal law. While all employers must follow federal law, state law is also important. Even though Kentucky does not have general employment laws about workplace policies for substance abuse, Kentucky does regulate specific industries like mining and the health care industries. Among the federal laws with which employers should be familiar are the Drug-Free Workplace Act of 1988, the Americans with Disabilities Act of 1990 (the "ADA"), the Civil Rights Act of 1964, the Health Insurance Portability and Accountability Act (HIPAA), and the Family and Medical Leave Act of 1993. While this list is not exhaustive, these statutes and their accompanying regulations establish a complex framework for employers to incorporate when drug-free workplace policies and procedures are developed.

As the statistics document, every employer is likely at some time to face dealing with an employee with substance abuse or addiction problems and, in Kentucky, it is likely that the substance abuse problem may be obscured by the fact that the employee is abusing drugs for which he or she has prescriptions. Employers and H.R. Managers should have policies in place that give them effective tools for addressing these problem-employees. Without policies in place, employers must figure out how to handle problem employees in a manner that is consistent with state and federal laws and regulations in a situation that is usually high stress and calls for immediate action. Having policies and procedures in place that establish the parameters for dealing with these problems is more effective and productive for both employers and employees when these situations are encountered. Employers should look to federal guidelines like the Mandatory Guidelines for Federal Workplace Drug Testing to use as a model for their own policies. While these guidelines only apply to federal employees, they do, however, provide valuable information regarding employment drug policy issues that would benefit most employers.

When developing a drug-free workplace policy, there are some basic steps which employers should follow to alleviate potential legal issues and employee problems. These include:

Because of the prevalence of substance abuse and addiction, every employer should expect to encounter an employee with these problems. Ignoring the likelihood that impaired employees will be among the workforce is shortsighted and will create even greater problems and risks for employers. For this reason, it is vital that employers take the time and initiative to develop or revise drug-free workplace policies and training programs for their employees to ensure that they are fully compliant with all applicable state and federal law.

About the Authors:

Lisa English Hinkle is a partner of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Hinkle concentrates her practice area in health care law and is located in the firm's Lexington office. She can be reached at lhinkle@mmlk.com or at 859-231-8780.

Luke A. Wingfield is an associate of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield's practice areas are litigation, employment law, insurance, administrative law and health care law. He is located in the firm's Lexington office and can be reached at lwingfield@mmlk.com or at 859-231-8780.

Jaron P. Blandford is a partner of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Blandford's practice areas are employment law, litigation, business litigation and criminal litigation. He is located in the firm's Lexington office and can be reached at jblandford@mmlk.com or at 859-231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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