The average life expectancy in the U.S. has declined for three consecutive years. The Centers for Disease Control and Prevention (CDC) links that decline to three factors: the rise in drug overdoses, an increase in liver disease, and a rise in suicide rates. More than 2 million Americans from all walks of life suffer from an opioid use disorder (OUD), and about two-thirds of those people are in the workforce. This has a tremendous financial impact on employers: In 2016, U.S. large employers covered $2.6 billion on treatment for OUD and overdose, up from $0.3 billion in 2004.
OUD and substance use disorder (SUD) more generally have a negative impact on the workplace through increased absenteeism, impaired job performance, and a decrease in the eligible workforce either due to candidates failing pre-employment drug screenings or fewer candidates applying as a result of their dependency. Employers can combat these issues by increasing accessibility to various treatments through their health plans and adopting policies allowing time for necessary treatment.
Studies indicate that the majority of employees would not seek help for a prescription opioid problem due to perceived stigma in the workplace. Educating employees about the risks and signs of opioid use disorder and taking steps to minimize stigma surrounding OUD/SUD can help address – and reduce – the problem before it starts. This can be accomplished by discussing the prevalence of OUD/SUD in America across all races, genders and socio-economic groups and recognizing individuals who have overcome the disease.
If an employee does come forward to seek help with OUD or SUD, understanding the interplay of leave policies is important. As usual, the FMLA and ADA play the leading role here. Under both, there is a distinction between an employee’s ongoing substance use (not protected) and seeking treatment for that use (protected).
Under the FMLA, the employee has to be in treatment or scheduled to start treatment for such time to qualify as FMLA covered leave. The addiction to be treated must constitute a serious health condition. The employee has to be referred for rehabilitation by a health care provider and the rehabilitation needs to be provided by a health care provider or by a provider of health care services, as those terms are defined by the FMLA.
The ADA provides that a person who has successfully completed a supervised drug or alcohol rehabilitation program or is participating in a supervised rehabilitation program and who is no longer engaging in substance use may be deemed a qualified individual with a disability.
Employers may also want to evaluate their zero tolerance policies related to drug tests and drug and alcohol related conduct. Rather than require dismissal for a failed drug test or inappropriate behavior linked to OUD/SUD, a revised policy could refer the employee for treatment.
Any crisis requires a response plan to overcome and move beyond it. The opioid crisis is no different and, like most other issues, is best addressed through education and the consistent implementation of appropriate policies and procedures.
Flu season is here and that likely means employers can hear
sneezing and sniffling up and down the hallways at work. Sick employees
are less productive and their absences can disrupt an employer’s
operations. Worse still, sick employees may come into work and spread an
illness to coworkers, exacerbating the problem. According to the U.S.
Center for Disease Control (CDC), recent studies show that flu vaccinations
reduce the risk of flu by between 40 and 60 percent. Given this,
employers may wish they could mandate that all employees receive a flu
vaccination. But can they?
For those employers outside the
healthcare field, the answer is probably not. The Americans with
Disabilities Act (ADA) allows employers to submit their employees to certain
health screenings and inquiries depending on what point in the stage of
employment the screening or inquiry takes place. Per the federal
regulations supplementing the ADA, employers are generally prohibited from
asking any disability-related questions or requesting any medical exams before
a conditional offer of employment is extended to the applicant. Once an
offer of employment is made, an employer may require a medical examination if
the same examination is used for all entering employees in that job category.
If an employer uses certain criteria from these examinations to screen out
employees, those criteria must be job-related and consistent with business
As for current employees, the ADA
generally prohibits employers from mandating that employees receive any medical
testing or vaccinations unless they are job-related, consistent with business
necessity, and no more intrusive than necessary. This is a very difficult
standard to meet unless the employer is part of the healthcare field or otherwise
requires employees to regularly interact with immune-compromised clients,
patients, or customers.
But there are several practices that employers can take to
encourage employees to receive vaccines short of job-contingent mandates.
Employees are more likely to get vaccinated if it is easy and affordable to do
so. Employers may want to subsidize the cost of vaccines, allow paid time
off to go get vaccines, or offer vaccines at the workplace to reduce any
As for employers in the healthcare field, courts have
repeatedly upheld an employer’s right to require that employees receive
vaccinations if they work directly with patients – such as a nurse, doctor, or
patient care assistant – or if they handle materials that could spread infection
– such as a lab technician. The CDC recommends that these healthcare
workers receive vaccinations for hepatitis B, flu, measles, mumps, rubella,
chickenpox, tetanus, diphtheria, pertussis, and meningococcal diseases.
Mandating vaccines, even in the healthcare field, is not
without legal risks of which employers should be aware. The U.S. Equal
Employment Opportunity Commission takes the position that healthcare employers
must consider exemptions for those employees who cannot receive vaccines for reasons
related to disability, pregnancy, or religion. Employers should analyze
each request for exemption on a case-by-case basis, including review of the
employee’s job position, as well as the employee’s particular religious belief
or medical documentation corroborating the disability at issue.
For employees who object to vaccines based on religious
grounds, employers should first determine if the employee sincerely holds the
religious belief. Courts do not overly scrutinize this question.
While the belief cannot be social, political, or personal to qualify as a
sincerely-held religious belief, courts cast a fairly wide net as to what
religious-based beliefs will provide protection under Title VII. The
religious belief may be newly adopted, inconsistently observed, not part of a
formal church or sect’s religious practice, or different from the commonly
followed tenants of the individual’s religion. As an example of the broad
interpretation of sincerely-held religious beliefs, courts have determined that
veganism may constitute a religion where an employee protests receiving a
vaccine containing animal products, such as eggs.
For employees who seek an exemption from mandatory vaccines
based on their disabilities, the employer may ask for medical documentation
corroborating the disability. Some examples of disabilities that may
preclude employees from receiving certain vaccinations include life-threatening
allergies, diseases that compromise the employee’s immune system, or – in the
case of a recent Third Circuit Court of Appeals case – a severe and
well-documented anxiety associated with the side effects of receiving vaccines.
Once an employer determines that an employee is objecting to
a mandatory vaccine based on a sincerely-held religious belief or documented
disability, the employer must determine whether allowing the employee an
exemption from the vaccine creates an undue burden on the organization.
For exemptions based on disabilities, the employer may also similarly consider
if the exemption would create a direct threat to the employee, his or her
coworkers, or the organization’s patients. This inquiry is often directly
related to the employee’s position. While it may be feasible to exempt a
hospital billing clerk from mandatory vaccines, the same is likely not true for
a pediatric nurse working with young patients who are particularly vulnerable
in the NICU.
The employer should also consider if there are alternatives
that could sufficiently protect the employee and patients short of requiring
the vaccine, whether it be requiring the employee to wear a mask or
transferring the employee to a position with less patient contact. If the
employer determines that exempting the employee will create an undue burden, it
can require the vaccine as a condition of further employment, but this decision
should be documented with a clear explanation as to why the vaccine is
job-related, no more intrusive than necessary and consistent with business
necessity. The employer must also monitor and ensure that it conducts the
exemption consideration and decision process consistently for all employees.
The key to handling requests for exemptions is to ensure
that the consideration focuses on the specific concerns of the particular
employee and encompasses an open and back-and-forth dialogue with the
employee. Sometimes learning more about the employee’s specific concerns
will lead to a solution. For example, an employee objecting to a vaccine
on religious grounds because the vaccine contains animal cells may be willing
to accept an alternative version of the vaccination that does not contain the
Many employers would appreciate a clear road map when traveling the often winding roads of reasonable accommodations under the Americans with Disabilities Act (ADA). However, there are no rigid routes for the interactive process. After an employee requests an accommodation, the employer must engage in a good faith and flexible dialogue that addresses the employee’s specific medical limitation, request, job position, and work environment, among other factors. That said, employers can find guidance in at least ten hard and fast rules on the reasonable accommodation process:
An employer’s statutory duty to provide reasonable accommodations may begin before the employment relationship even forms. If an applicant requests reasonable accommodations to enable participation in the hiring or interview process, an employer must provide an accommodation unless doing so poses an undue hardship.
Generally, an employer’s duty to engage in the interactive process is triggered whenever it learns that an employee needs an accommodation. Courts give employees wide latitude in how they make this known. The employee need not make the request in writing, identify a specific accommodation, or use specific terms such as “disability,” “ADA,” or “reasonable accommodation.”
To start the interactive process, the employer should gather information from the employee, including the specific nature of the limitation, the specific difficulty or issue that the employee is experiencing at work, and what sort of accommodation the employee is seeking.
An employer may require that the employee provide documentation from the medical provider most familiar with the employee’s disability in order to confirm the employee’s specific limitations and need for accommodation.
Once the employer receives this medical documentation, it should ensure that any subsequent requests for updated records are reasonable and do not create an undue burden on the employee. For example, rather than requesting updates on a weekly basis, an employer may seek updated medical information at a time that coincides with an employee’s next scheduled appointment if the doctor’s assessment may change at that time.
Employers should keep all information collected from employees about their disabilities and need for accommodations confidential. All medical documents should be maintained in a standalone file separate from the employee’s personnel file.
The employer should also be collecting information on its end as it reviews the information submitted by the employee. For example, the employer should be reviewing the essential functions of the employee’s position and the employee’s ability to perform those functions, and determining which reasonable accommodations, if any, would enable the employee to perform his or her job. An employer need not provide an immediate response to an employee’s request for accommodation, but it must address the request promptly and keep the employee informed of any updates in the process to ensure there is open communication. Document all communication throughout the interactive process.
The goal of the interactive process should be to allow the employee to perform his or her existing job through a reasonable accommodation. However, even if this outcome is unfeasible, the interactive process is not over. Employers should then consider if they can accommodate the employee through reassignment to a different vacant position for which the employee is qualified or through a temporary leave of absence.
An employee is entitled to a reasonable and effective accommodation – not necessarily the accommodation of his or her choice.
If an employer is able to reasonably accommodate an employee, it is advisable to keep the interactive process open even after the accommodation is implemented. The employer should reach out to the employee to ensure that the accommodation was provided as discussed and that it is indeed effective in enabling the employee to perform his or her job.
Flu season is here and offers an opportune time to discuss the tricky intersection between the Americans with Disabilities Act (ADA) and employers’ efforts to require mandatory vaccinations and health screenings for employees. Some employers, especially those in the healthcare field who provide direct services to patients, require employees to pass a health screening or receive certain vaccinations either upon hire or at other periodic intervals. Employers should ensure that these efforts comply with the ADA.
The ADA allows certain health screenings and inquiries depending on what point in the stage of employment the screening or inquiry takes place. Per the federal regulations supplementing the ADA, employers are generally prohibited from asking any disability-related questions or requesting any medical exams before a conditional offer of employment is extended to the applicant. Once an offer of employment is made, an employer may require a medical examination if the same examination is used for all entering employees in that job category. If an employer uses certain criteria from these examinations to screen out employees, those criteria must be job-related and consistent with business necessity. As for current employees, the ADA generally prohibits employers from requiring current employees to undergo medical examinations or inquiries unless the employer can show that the exam is job-related and consistent with business necessity.
The Eighth Circuit Court of Appeals recently issued an opinion analyzing these very rules and provided further clarity on what types of exams may be deemed job-related and consistent with business necessity for employers working in the healthcare setting. In Hustvet v. Allina Health System, the appellate court affirmed summary judgment for an employer that required that the plaintiff complete a health assessment tracking whether employees had immunity to certain communicable diseases. The health assessment revealed that the plaintiff, who worked in a patient-centered role within the healthcare system, did not have immunity to rubella. When the plaintiff refused to receive a rubella vaccine, her employer terminated her employment. The court deemed the employer’s medical examination to be job-related and consistent with business necessity and therefore held that the employer did not violate the ADA.
The court found that requiring the plaintiff to receive the rubella vaccine was job-related and consistent with business necessity. In so finding, the court reasoned that the employer selected a class of employees – those who interacted directly with patients – who needed to complete a health assessment because that class of employees posed a genuine safety risk, and that the specific assessment allowed the employer to decrease that risk. The court confirmed that an employer in the healthcare field may require that employees undergo health assessments or receive mandatory vaccinations in order to ensure employee and patient safety by decreasing the risk of communicable disease exposure and transmission.
Employers who require mandatory
health screens or vaccinations should ensure that the examination measures are
supported by a job-related reason, consistent with business necessity, apply
similarly to all employees within a job category, and are no more intrusive
than necessary. Any information collected through these medical
examinations must be collected and maintained on separate forms and maintained
in a separate confidential medical file.
One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.
Opioid use in the United States has started to take on a whole new form and is now commonly referred to as the opioid epidemic. Illinois has not escaped the opioid epidemic; in 2016 there were 2,278 drug overdose deaths of which over 80% (1,826) were opioid related. The number of opioid related deaths in 2016 was an increase of over 30% of the opioid related deaths in 2015 and an increase of over 70% of the number of opioid related deaths in 2013.
In looking at these numbers, it is important to understand that these are only the deaths – not the actual number of individuals using or abusing opioids. In a recent study by the National Safety Counsel, over one in three Illinois residents (35%) reported being impacted by opioid/heroin use by knowing someone (self, family/friend, co-worker/co-workers’ family, or neighbor/neighbor’s family) that started using opioids/heroin, became addicted to opioid/heroin, survived an opioid/heroin overdose or had died from an opioid/heroin overdose. Indeed, one issue with the opioid epidemic is that the gateway to opioid use does not always come from illegal activities, but can start out with a legitimate legal prescription. When there is a valid use for a prescription drug, an individual can feel like they are not doing anything wrong and their use can quickly turn into a slippery slope of addiction, activities that negatively impacts their work performance and potentially illegal activities. As a result of this, the opioid epidemic does not discriminate and can be found across all demographics, industries and positions.
One of the concerns with opioids for employers is that it is more difficult to tell if someone is under the influence or using opioids or heroin than other more traditional drugs. For instance, opioids and heroin do not come with symptoms or indicators that are easy to perceive like with alcohol – a smell, shaking hands and movements, and behavior changes; or with marijuana – a smell, red eyes, delayed reaction time, anxiety, and lack of coordination. With opioids, it is often difficult for employers to make the connection between an employee appearing groggy, sleepy or forgetful in the workplace to being linked to drug use. Indeed, what employers will typically see, if anything at all, is a gradual decline in an employee’s attendance and performance, until the employee loses their job or stops coming to work altogether.
The traditional tool of employers to identify and prevent drug and alcohol use within the workplace is drug testing. Pre-hire drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where the individual is not yet an opioid user. Reasonable suspicion drug testing can also be effective, but first requires reasonable suspicion of opioid use which can be difficult to identify.
So what does this leave? First and foremost, employers should re-evaluate their drug policies and testing procedures and understand the potential legal implications. For example, drug testing can be modified to test for legal prescription medications, but in order to avoid a violation of the ADA the applicant or employee must be able to provide an explanation for the positive drug test, such as a prescribed medication. Additionally, employers must realize that even if the employee is using prescription medication, there may be an underlying medical condition that they need to be aware of to avoid any kind of disability discrimination claim.
Next, employers should consider questioning its health care benefit carrier and workers’ compensation carrier on what actions they are taking to address the opioid epidemic and collaborating with them on any specialized programs or options for addressing. This can include learning about whether the carrier has programs for the conservative use and risk of prescription opioids, an opioid management program and/or a prescription benefit management program, which can help in preventing prescription medication abuse and identify the abuse of prescription medications. In doing so, employers should also consider investing in an employee assistance program (EAP), which can help employees avoid or address addiction.
Another investment that can pay dividends is management and employee education. Better training and education for not only management, but also employees regarding the impacts of opioids, how to identify opioid use and how to address opioid abuse. Management training can help make management more aware of how to identify potential issues before they occur and get employees help before it escalates to more serious problems. This includes not only taking into consideration the symptoms of opioid and other drug use, but also recognizing changes in how employees are acting, their performance, their attendance, any recent injuries they have had and any other issues that could indicate drug abuse. Employee training can help employees understand the danger of opioids, how the use of legal use of prescription opioids can lead to addiction, and what steps can be taken to seek assistance. Of course, any training should be tailored to include information regarding the Company’s policies, drug testing, benefit programs and reassurances regarding the Company’s commitment to providing confidential and accessible help and treatment.
Finally, one thing to remember is that despite the high numbers of deaths in 2016 in Illinois, Illinois is still behind many states in its exposure to the opioid epidemic. Indeed, in some places manufacturing employers have found using pre-hiring drug testing was not effective. The reason for this is it significantly increased the number of applicants they have had to go through in order to hire for a position or was making it near impossible to fill their staffing needs due to applicants not returning after learning there was drug testing or applicants consistently failing the drug test.
Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.
The U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.
The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.
In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work. Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.
The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA. Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”
Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.
Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.
The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.
At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:
Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.
The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.
Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.
In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.
After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.
In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.
What should employers do?
Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.
Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:
Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?