Rehabilitating HR practices: Policies for substance abuse

From the Portland Business Journal, October 11, 2007

Lindsay Lohan. Britney Spears. Owen Wilson. Headlines have been peppered lately with news of celebrities seeking treatment for substance abuse.

But the glitterati aren’t the only ones who wrestle with addiction and alcoholism. Employers need to have a clear policy for dealing with the issue of employees seeking such treatment. Sooner or later it will affect every business.

People still fear the consequences of informing employers they need treatment for drug or alcohol addiction says Barb Seatter, who manages addiction services at Cascadia Behavioral Healthcare Inc.

People still fear the consequences of informing employers they need treatment for drug or alcohol addiction says Barb Seatter, who manages addiction services at Cascadia Behavioral Healthcare Inc.

Nearly 75 percent, or 13.4 million, of the nearly 18 million illegal drug users nationwide are employed full or part time, according to the 2006 National Survey on Drug Use and Health.

And it’s more than a health problem. The financial toll is staggering.

Some say businesses lose as much as $44 billion annually because of absenteeism, lost productivity, higher health care costs and increased workers’ compensation related to substance abuse.

Making matters worse, employers trying to address the issue face a minefield of legal traps. One errant step can put a small business in jeopardy of a major disability lawsuit. If a company loses such a suit, it could be forced to pay attorneys’ fees for both parties as well as economic and non-economic damages.

“Even if you’re correct as an employer in your actions, [lawsuits] can cost you a lot of money and a lot of lost time, said Ed Reeves, a partner in the labor and employment group at Stoel Rives LLP.

Treatment for substance abuse is eligible for coverage under the Family and Medical Leave Act of 1993, a federal law that allows employees to take unpaid leave to address serious medical problems.

Under Oregon and federal family leave law, employees are entitled to up to 12 weeks per year to deal with a major health condition, Reeves said. Their jobs are protected and they are entitled to return to the same jobs they left.

Reeves suggests that human resource managers familiarize themselves with the law.

The prospect of paying damages is prompting a growing number of companies to buy employment practices liability insurance. Although deductibles can run into six-figures, the policies protect business owners from major legal costs related to workplace lawsuits.

If a worker asks for help, it’s in a company’s best interest to get the person help. That can include referring the person to an employee assistance plan designed to help workers address substance abuse problems and giving the worker details of the Family and Medical Leave Act.

Advocates say it’s important for employees to view their workplace as a safe place to seek help.

“Often people asking for help just made an enormous mistake,” said Jason Renaud, spokesman for the Mental Health Association of Portland. “The key for employers is to have a little bit of sanctuary.”

Employees are not obligated to tell their employers that they’re seeking treatment for substance abuse. With written permission from a physician, employees can take leave under family medical leave laws.

It’s not uncommon. Advocates say employees sometimes even pay for treatment out of pocket rather than filing an insurance claim.

“People are afraid of losing their job and being labeled,” said Barb Seatter, who manages addiction services at Portland-based Cascadia Behavioral Healthcare Inc., which serves 2,000 people annually. “People who need to take time off to receive substance treatment more than likely would not tell an employer.”

Besides the issue of taking leave to seek treatment, Reeves advises employers to establish clear policies on alcohol and drug abuse taking place at work or affecting performance, and make sure all employees understand them. That way employers can legally discipline a worker who shows up drunk and drives a forklift into a wall.

Employers can also reserve the right to test for drugs or alcohol if they have reasonable suspicion to believe an employee is under the influence at work.

If an employer thinks a worker is under the influence, Reeves recommends that a supervisor observe the employee’s behavior before asking a second manager to also observe the worker. At that point, the employer should talk to the worker in a private area. If the worker acknowledges being under the influence of an illegal substance, the employer can impose discipline as appropriate.

If the worker denies it, but the employer has a policy that allows testing for drug and alcohol use with reasonable suspicion — something that Reeves recommends — the employee should be referred to a testing center before any discipline is imposed.

It’s important that employers not speculate on whether an employee has an addiction that requires professional help, Reeves said. Such declarations can be grounds for a discrimination lawsuit.

Instead, employers should focus on performance. If employees fail to meet deadlines or fulfill work assignments, they can be held responsible.