Identification and Disclosure
In many cases, employers may be unaware of their employees’ substance use behaviors, whether they are past or present. Employees may access EAP services, support groups, or consult their healthcare providers privately without any needed intervention from or disclosure to their employer. In these cases, the employer’s role does not extend beyond ensuring that their health plan benefits and workplace policies are supportive for employees facing any chronic disease or health issue, including SUD. In other cases, employers may be made aware of an employee’s substance use behaviors. Multiple laws and regulations exist that determine the nature of these occurrences and how each entity can proceed so that all parties’ best interests are secured.
If an employee is suspected of being impaired in the workplace, employers should not immediately terminate or remove the employee from their position without a thorough assessment of the facts.. A conversation with the employee can yield further information that will determine the next steps an employer may need to take. Employers may want to consider accommodations to protect their workforce and community. In some cases, this may involve reassigning an employee to another position for the day, and in others, it may involve taking further action. To confirm suspicion of impairment, employers should consider the objective evidence and, if legally permitted, require drug testing. Consider that impairment in the workplace could be a result of legal and illegal drug use.
If an employee is suspected of having an SUD or ongoing addiction issue, it is important to proceed cautiously. Employees can have a substance use issue but never violate a written substance use policy, which is why it is crucial that employers focus on performance or behavior issues rather than perceived health condition symptoms. Despite any suspicions an employer may have, the Americans with Disabilities Act (ADA) does not allow employers to make disability-related inquiries or medical examinations of their employees unless they are “job-related and consistent with business necessity.” For example, questions about past drug use and rehabilitation or current prescription drug use are not permitted, except in specific situations during the post-offer, pre-hire phase before employment commences. Current illegal drug use is not a covered disability under the ADA. If an employee self discloses that they have an SUD, employers ordinarily cannot fire the employee only based on that disclosure without an interactive dialogue and weighing of all relevant facts and regulations. Employers should maintain confidentiality and assist the employee in accessing the services necessary to support their recovery based on the employee’s requests and interactive processes.
