Intervention and Confidentiality
When an employee has violated a substance use policy or self disclosed an SUD, employers should act in the best interest of the employee, as well as their business. Generally, intervening with an employee who is suspected of misusing substances should focus on the effect their misuse has had on performance or behavior, rather than the act of using itself. Employers should always consider if the same discipline would be imposed on an employee who is not suspected of addiction or substance abuse versus those who are. The same processes should apply. Employers are not required to terminate employees if workplace impairment or a violation of substance use policy has been identified. They can help their employees access appropriate treatment and support their recovery, so they can maintain their employment status. However, an employer may consider terminating an employee who is provided this opportunity under these circumstances, continues to violate workplace policies, and exhibits performance deficiencies.
Employees who are in treatment may have concerns about confidentiality. Again, in many cases, employees may get the help they need without the employer ever being made aware of their condition. In cases where the employer is made aware, employees’ confidentiality should be a priority. The ADA and FMLA limit the information that employers have access to regarding an employee’s disability or serious health condition. Additionally, certain entities covered under the Health Insurance Portability and Accountability Act (HIPAA) limits how personal health information is disclosed, secured, and used. Each of these regulations have specifications that are situationally based. In general, employers should limit the amount of information to the minimum necessary to administer sick leave and similar HR benefits. Employers should refer to their administrators as much as possible in handling workers’ compensation, wellness programs, or health plan processes. It is a best practice to obtain employee consent for any release of medical information as it applies to these decisions. When in doubt, consult legal counsel to ensure full compliance to all laws.