Interact Sensitively with Employees Addicted to Opioids

According to the National Institute of Drug Abuse, 21-29 percent of patients who are prescribed opioids for pain will end up misusing them. Read this blog post to learn more.


Employees who abuse opioids often are given a second chance by their employers. But well-meaning employers could wind up being sued for discriminating against those workers in violation of the Americans with Disabilities Act (ADA) if they don't handle the situation very carefully.

Opioid addiction has been rampant in the U.S. for some time. More than three out of five drug overdose deaths last year involved an opioid, and overdoses rose 70 percent in the 12 months ending September 2017, according to the Centers for Disease Control and Prevention.

So what can HR professionals do about it? If a worker admits to the problem, the path is fairly clear. But if the employer merely suspects that an employee is addicted to prescription pain relievers but has no real proof, the employee should be treated like any other employee who is having attendance or performance issues, said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

An employer should never accuse someone of having an addiction, because if the employer is wrong, the accusation could lead to an ADA claim, Russo cautioned. Although current drug use isn't considered an ADA disability, a history of drug addiction is. Moreover, someone using prescription drugs might have an underlying condition covered by the ADA.

Statistics on opioid use

If an employee admits to opioid abuse, or the problem is discovered through drug testing, the employer should discuss it with the employee to determine if he or she needs a reasonable accommodation, such as leave to obtain treatment, Russo said. The illegal use of drugs need not be tolerated at work, she added.

Reasonably accommodate the employee so long as there's no direct threat to the health and safety of himself or herself, or others, recommended Nancy Delogu, an attorney with Littler in Washington, D.C.

Drug Testing

The Equal Employment Opportunity Commission has opined that employers may ask about an employee's use of prescribed medicine or conduct a drug test to determine such use only if the employer has reasonable suspicion that its use will interfere with the employee's ability to perform the job's essential functions or will pose a direct threat.

Many employers are expanding their drug-testing panels to include semisynthetic opioids such as hydrocodone, hydromorphone, oxycodone and oxymorphone, in addition to traditional opioids such as heroin, codeine and morphine, Russo said. This is lawful in most states as long as the employer does not take adverse employment actions when drugs are used legally, she noted, which is why an employer should use a medical review officer in the drug-testing process. If the medical review officer concludes that the positive test result is the result of lawful drug use, the result is reported to the employer as negative.

Sometimes an employer will say it has reasonable suspicion that the employee came to work impaired by drug use and is considering a mandatory drug test. At that point, some employees will say the drug test would be positive and the test consequently is not necessary.

Discussions with Employees

If there are performance problems and the employee has admitted to opioid addiction, some employers tell employees that they can remain employed so long as they go through inpatient treatment. Delogu discourages that approach. Employers aren't workers' doctors, so they shouldn't be deciding whether someone needs a treatment program, she explained.

But if someone voluntarily seeks to enter an addiction-recovery program, that person may have legal protections under state law, said Wendy Lane, an attorney with Greenberg Glusker in Los Angeles. For example, California has a law requiring employers with 25 or more employees to reasonably accommodate alcohol and drug rehabilitation.

Delogu recommended that employers that believe there is a problem with substance abuse ask if the addicted employee needs assistance from the employee assistance program.

An employer can require that an employee who has violated a policy be evaluated by a substance abuse professional and complete treatment prescribed for them, without dictating what that treatment will be, she said. The employer may choose to forgo disciplinary action if an employee agrees to these terms and signs an agreement to this effect. The employer then would not have to be informed about the person's decided course of treatment, whether inpatient, outpatient or no treatment at all, she said. The employee typically will be subjected to follow-up drug testing to make sure he or she hasn't resumed the use of illegal drugs.

Many employers are willing to give employees with performance problems resulting from opioid addiction a second chance, she noted.

SOURCE: Smith, A. (1 November 2018) "Interact Sensitively with Employees Addicted to Opioids" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/employees-addicted-to-opioids.aspx


When is a Workers’ Compensation Claim Compensable?

Carefully evaluating workers’ compensation claims is crucial in helping your company save money and prevent fraud. Workers’ compensation is simply a form of insurance that offers employees medical coverage in the event they are injured during a work-related function. Depending on the state of residence, it may also give compensation for disabilities sustained or cover rehabilitation costs so the employee can return to the workplace quickly and smoothly.

Compensable workers’ compensation claims have specific characteristics that will help you determine if and when an injury is covered.

Workers’ compensation is crucial to protecting employees, but it is often a source of contention among employers because it comes with considerable gray areas. When is a claim compensable? How do we identify a fraudulent claim? How do we report a claim, and should we report all workplace injuries no matter how serious? This piece is designed to help you determine when—and if—an injury is covered by workers’ compensation.

Requirements

The claim must meet all five of these requirements in order to be compensable:

Happened to One of Your Employees

The first requirement is in place to ensure it is your employee filing the claim, not an independent contractor or vendor who works for themselves or a third party. Even if the incident occurs on your property, unless it is someone who works directly for you, the claim is not compensable.

Resulted in an Injury or Illness

Injury is not the only thing that can potentially be covered by workers’ compensation. Illnesses could also qualify as a compensable claim, but only if they are related directly to the job. The illness also must be caused directly by the working conditions to be covered in a workers’ compensation policy. For example, a miner’s contraction of black lung would be compensable in all states. However, an employee in an office with a co-worker who smokes would not be eligible for workers’ compensation for treatment of illness due to secondhand smoke.

Arose Out of Employment

This requirement means there must be a direct connection between the injury and the desire or attempt to further the employer’s business. If the employer benefits in some way, whether monetarily or otherwise, from the employee’s activity, then the claim meets this qualification.

Occurred in the Course and Scope of Employment

The employee must be at work when the injury occurs. This includes any place or location mandated or expected by the employer. So when an injury occurs at the employee’s physical everyday work site, that employee must prove he or she was injured while actively engaging in the furtherance of the employer’s business. There is a special provision called the “coming and going rule,” which maintains that benefits are denied for injuries received when traveling to or from work. Additionally, injuries arising out of transit from one work site to another, for instance when traveling to visit clients, are compensable. This provision also requires that the actions leading to the injury of the employee in question be prompted by the aspiration to further the employer’s business interests.

Resulted in Impairment and/or Lost Wages

The injury or illness in question must cause the employee to be impaired in some way and lose wages from not being able to complete his or her tasks completely. It is also a compensable incident if the injury or illness results in impairment but without lost wages, or vice versa.

Identifying a Fraudulent Claim

Studies commonly show that roughly 90 percent of all workers’ compensation claims filed are legitimate. However, it is still important as an employer to watch for these red flags that may indicate a fraudulent claim:

  • Filing multiple claims
  • Longer absences than anticipated by the employee, combined with an unwillingness to return to work
  • Unwillingness to be assigned to other, lighter jobs within the company or to complete partial duties
  • Constantly missing medical appointments
  • Employee will not provide date, time or location of the incident that caused injury
  • Employee has no recollection of services provided for related medical bills
  • Lack of witnesses to an accident or incident
  • Employee cannot produce specific information about the nature of the injury
  • Employee has a history of short-term employment

If any of these red flags occur, it by no means makes the claim automatically fraudulent. These are simply guidelines to keep employers proactively evaluating the legitimacy of a workers’ compensation claim.

Newsletter Provided by: Hierl's Property & Casualty Experts

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What employers can do to combat risks of workplace opioid abuse

Workplace opioid abuse is posing a unique challenge for employers. Even appropriate use of prescription opioids can pose grave risks and dangers for companies and their employees. Continue reading to learn more.


The opioid epidemic presents a unique challenge for employers. While opioids can be beneficial for employees suffering from pain, they also pose grave risks and dangers for companies as even appropriate use of the drugs can cause impairment and lead to accidents.

For example, if an employee had an accident and suffers an injury, you may see the physical signs of the injury. However, it’s not as obvious if the employee was prescribed opioids for the pain associated with that injury. If the employee doesn’t disclose the prescription, they could resume their everyday duties, like operating machinery, when they should be restricted while using the drug.

Due to the increasing prevalence of opioid use, employers are likely now challenged with addressing misuse in the workplace. Often, companies may not know the best approach to supporting employees dealing with an opioid addiction. When speaking with employers, it’s important to stress the need for organizations to be well-versed in opioid misuse and ways to proactively identify and address it.

Employers can work to combat opioid use in their organization by providing accommodations and updating their policies, procedures and employee communications. Here are a few ways they can get started.

Short-term accommodations

If an employee is taking prescribed opioids for an injury and has specific limitations or restrictions, an employer can work with a disability carrier to determine potential short-term accommodations that can be made to meet the employee’s needs. Short-term accommodations can help keep an employee comfortable and productive at work during his or her recovery.

Policies and procedures

If an employer hasn’t done so already, it should consider putting a comprehensive drug policy in place to help it address issues that may arise if an employee misuses prescription drugs. The policy should include a description of available assistance options for employees who are struggling with substance abuse and clearly state consequences for employees who violate the policy, empowering supervisors to take appropriate action in response to employee issues.

Destigmatizing use

It’s easier to help someone if they come forward, but right now, stigma surrounding opioids can cause employees to keep their prescription use to themselves. Encouraging open lines of communication can help companies destigmatize prescription drug use so their employees feel comfortable disclosing the medications they’re taking that could limit them at work.

Fostering transparency, combined with short-term accommodations and clear policies, can help employees feel more comfortable coming forward with their condition. Remind employers that their disability carrier can be a great resource to help with education, recommend proactive ways to address misuse at their organization and create accommodation plans for employees in need. With these steps, employers can help support their employees and, ultimately, make the workplace a safer place for all.

SOURCE: Jolivet, D (16 October 2018) "What employers can do to combat risks of workplace opioid abuse" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/what-employers-can-do-to-combat-workplace-opioid-abuse-risk


Severance plans: How savvy employers can stay ERISA compliant

There are significant benefits associated with severance arrangements that are also ERISA plans. Read this blog post to find out how you can stay ERISA compliant with your severance plans.


An employer’s promise to provide severance benefits may be written or oral, formal or informal, and individual or group. Determining whether an ERISA plan already exists, or whether an employer wants its severance arrangement to be subject to ERISA, is an important consideration in determining an employer’s obligation and liabilities associated with a severance arrangement.

There are significant advantages associated with a severance arrangement that is an ERISA plan as discussed in detail below. An employer, however, cannot unilaterally decide that the severance arrangement is an ERISA plan. Instead, an employer, when designing and administering a severance arrangement, can take definitive steps to ensure that the arrangement is treated as an ERISA plan.

Employers may assume that the first step to ensure the existence of an ERISA plan is to have a written plan document, which is required by ERISA. Surprisingly, this is not necessarily determinative as to whether an ERISA plan exists. Courts have held that ERISA plans can exist without a written plan document and vice versa.

Case law has provided the broad outlines of the nature of an ERISA-governed severance plan. An essential characteristic of ERISA severance plans is that, by their nature, they necessitate “an ongoing administrative scheme.” Courts have looked at the following indicators when determining what constitutes an ongoing administrative scheme:

  • The employer’s discretion in determining (1) eligibility for benefits or (2) available plan benefits
  • The form of payment such as lump sums versus periodic payments
  • Any ongoing demand on the employer’s assets such that there is an ongoing scheme to coordinate and control the distribution of benefits
  • Calculations based on certain factors such as job performance, length of service, reemployment prospects, and so forth.

Severance plans or arrangements that normally do not require an ongoing administrative scheme, and therefore, do not implicate ERISA, are plans that have lump-sum payments that are calculated under a formula and are mechanically triggered by a single event (such as termination). Where severance payments are made over time (through payroll, for example) and/or additional benefits (such as continuation of benefits or outplacement services) are provided, the severance arrangement is likely subject to ERISA.

As a practical matter, whether severance arrangements are ad hoc or recognized in a formal plan document, they may end up providing ERISA-covered benefits. In a dispute, an employer generally prefers that ERISA applies because of ERISA’s preemption of state laws. Preemption protects employers from state laws that may favor employees and generally limits the dispute to an ERISA claim for benefits, thereby avoiding the potential exposure to punitive, extra-contractual or special damages under state laws. In addition, ERISA’s claim procedure, which provides a pre-litigation administrative process for dispute resolution, will apply if proper plan language is provided. If employees with a severance claim fail to faithfully follow the ERISA claims procedure, their lawsuits may be dismissed for failure to exhaust administrative remedies.

Typically, the plan document gives the employer, in its capacity as plan administrator, the discretionary authority to interpret the plan’s language and make decisions about the plan. If the employee follows the claim procedures and the claim is denied, the decision-making process of the employer (or its designee) if done properly, is given deferential treatment by a reviewing court. Moreover, in many cases, judicial review is limited to only those matters addressed in the administrative record of the claim. In other words, many federal courts would decline to consider factual matters that were not raised by the employee in the claim procedure process.

Another consideration for the savvy employer is that severance benefits are almost always considered to be “welfare” benefits. Welfare benefits, as opposed to pension benefits, are afforded an extremely low level of protection under ERISA. Essentially, the employer’s exposure as to promised severance benefits is only as broad as its express contractual commitment to them. By appropriately documenting the benefits with “best practices” language (such as specifying that the amendment or termination of benefits may be done with or without advance notice), employers can take advantage of the opportunity afforded by the relatively thin protections provided by ERISA. On the other hand, poor or no documentation of a severance arrangement may leave an employer with difficult-to-prove assertions as to what severance commitments were actually made.

In summary, an ERISA-governed plan provides an employer with significant advantages in litigation. In addition, a severance arrangement subject to ERISA will enjoy the powerful benefits of ERISA preemption and the ERISA claims procedures.

SOURCE: Rothman, J.; Ninneman, S. (3 October 2018) "Severance plans, Part 1: How savvy employers can stay ERISA compliant" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/how-employers-can-stay-erisa-compliant-with-severance-plans


Target on Safety: Driver Fatigue

Fatigue is the result of physical or mental exertion that impairs performance. Driver fatigue may be due to a lack of adequate sleep, extended work hours, strenuous work or non-work activities, or a combination of other factors. The Large Truck Crash Causation Study (LTCCS) reported that 13 percent of Commercial Motor Vehicle (CMV) drivers were considered to have been fatigued at the time of their crash.

Below are some tips that will help you stay healthy and feel well rested during your time on the road.

Tip #1: Get Enough Sleep

Be sure to get an adequate amount of sleep each night. If possible, do not drive while your body is naturally drowsy, between the hours of 12 a.m. to 6 a.m. and 2 p.m. to 4 p.m. Driver drowsiness may impair a driver’s response time to potential hazards, increasing the chances of being in a crash. If you do become drowsy while driving, choose a safe place to pull over and rest.

The circadian rhythm refers to the wake/sleep cycle that our body goes through each day and night. The cycle involves our internal clock and controls the daily pattern of alertness in a human body. With inadequate sleep, the drowsiness experienced during natural “lulls” can be even stronger and may have a greater adverse effect on a driver’s performance and alertness.

A study by the Federal Motor Carrier Safety Administration (FMCSA) found that driver alertness was related to “time-of-day” more so than “time-on-task.” Most people are less alert at night, especially after midnight. This drowsiness may be enhanced if you have been on the road for an extended period of time.

A recent study conducted to determine the risk of having a safety-critical event as a function of driving-hour suggests that incidents are highest during the first hour of driving. The authors hypothesize that drivers may be affected by sleep inertia shortly after waking from sleep. This may be especially true for drivers who sleep in the sleeper berth. Sleep inertia refers to impairment in a variety of performance tasks, including short-term memory, vigilance, cognitive functioning, reaction time and ability to resist sleep.

Tip #2: Maintain a Healthy Diet

Skipping meals or eating at irregular times may lead to fatigue and/or food cravings. Also, going to bed with an empty stomach or immediately after a heavy meal can interfere with sleep. A light snack before bed may help you achieve more restful sleep. Remember that if you are not well-rested, induced fatigue may cause slow reaction time, reduced attention, memory lapses, lack of awareness, mood changes, and reduced judgment ability.

A recent study conducted on the sleeping and driving habits of CMV drivers concluded that an unhealthy lifestyle, long working hours, and sleeping problems were the main causes of drivers falling asleep while driving.

Tip #3: Take a Nap

If possible, you should take a nap when feeling drowsy or less alert. Naps should last a minimum of 10 minutes, but ideally a nap should last up to 45 minutes. Allow at least 15 minutes after waking to fully recover before starting to drive.

Short naps are more effective at restoring energy levels than coffee. Naps aimed at preventing drowsiness are generally more effective in maintaining a driver’s performance than naps taken when a person is already drowsy.

Tip #4: Avoid Medication That May Induce Drowsiness

Avoid medications that may make you drowsy if you plan to get behind the wheel. Most drowsiness-inducing medications include a warning label indicating that you should not operate vehicles or machinery during use. Some of the most common medicines that may make you drowsy are: tranquilizers, sleeping pills, allergy medicines and cold medicines.

In a recent study, 17 percent of CMV drivers were reported as having “over-the-counter drug use” at the time of a crash. Cold pills are one of the most common medicines that may make you drowsy. If you must drive with a cold, it is safer to suffer from the cold than drive under the effects of the medicine.

Tip #5: Recognize the Signals and Dangers of Drowsiness

Pay attention. Indicators of drowsiness include frequent yawning, heavy eyes and blurred vision.

Research has indicated that being awake for 18 hours is comparable to having a blood alcohol concentration (BAC) of 0.08 percent, which is legally intoxicated and leaves you at equal risk for a crash. A 2005 study suggests that three out of every four CMV drivers report having experienced at least one type of driving error as a result of drowsiness.

Tip #6: Do Not Rely on “Alertness Tricks” to Keep You Awake

Behaviors such as smoking, turning up the radio, drinking coffee, opening the window and other “alertness tricks” are not real cures for drowsiness and may give you a false sense of security.

Excessive intake of caffeine can cause insomnia, headaches, irritability and nervousness.  It takes several minutes for caffeine to get into your system and deliver the energy boost you need, so if you are already tired when you first drink a caffeinated drink, it may not take effect as quickly as you might expect. In addition, if you are a regular caffeine user, the effect may be much smaller. Rolling the window down or turning the radio up may help you feel more alert for an instant, but these are not effective ways to maintain an acceptable level of alertness.

Source: DOT/FMCSA CMV Driving Tips: Driver Fatigue