While this is not the first time a “war on drugs” has been politicized, the new war in 2016 is different than President Nixon’s 1971 declaration of war on drugs and Nancy Reagan’s 1981 “just say no” campaign. The 2016 presidential candidates are espousing the country’s desperate need to control the illegal use of legal prescription drugs. Employers may unwittingly play a major role in combating an unprecedented epidemic. Why should employers care? Because illegal drug use is costing employers billions of dollars in lost productivity, medical costs, workers compensation, and employee turnover. The Working Partners’ National Conference Proceedings Report, sponsored by the United States Department of Labor, estimated in 2011 that it costs an employer $7,000 to replace a salaried worker.
Based upon the statistics, every employer inevitably will be required to make a difficult decision about a drug addicted employee. The National Institute on Drug Abuse (NIDA) published statistics in January 2014 that in 2010, 8.76 million Americans abused prescription drugs. Another statistic from the NIDA: The United States constitutes five percent of the world’s population and 75 percent of the world’s prescription drug use.
The Americans with Disabilities Act (ADA) does not protect employees who are currently using illegal drugs, including those employees who are illegally using prescription drugs. The ADA, however, protects employees “who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully.” “Currently using” is not well-defined and may be as broad as “recently enough to justify an employer’s reasonable belief that involvement with drugs is an on-going problem,” according to the EEOC Compliance Manual.
With the exponential rise in prescription drug abuse in recent years, employers need to consider how their current drug policies assist in dealing with the drug addicted employee and whether changes are necessary to existing policies. Many employers have “drug free” workplace policies that inadequately address prescription drug abuse. Policies lacking in guidance should be reviewed for potential revision. Zero tolerance policies could be re-evaluated if the employer wants to be able to give employees a second chance as those policies tend to leave no room for deciding whether an employee should be given a second chance. With solid, clear policies, management and human resources will have the necessary tools to make employment decisions regarding a currently using employee, particularly since, depending on the circumstances, firing the employee may not be the best resolution.
Having a policy that acknowledges illegal use of prescription drugs, however, is the floor not the ceiling. Employers can take further proactive steps, such as training supervisors to recognize potential drug abuse and educating employees regarding available employee assistance programs. Employees who were previously addicts but successfully complete treatment, no longer illegally use drugs, and return to work are protected individuals under the ADA. Where there is potential to rehabilitate rather than terminate an employee, adequate policies and procedures will help employers save valuable time and money by retaining employees and assisting them with recovery.