Executive Summary: As promised, this is the first of multiple Alerts that will explore the details of the ongoing opioid epidemic, identify relevant issues for employers to analyze, and provide suggestions on how to effectively navigate this complicated and highly problematic issue.
Our June 12, 2023 Alert outlined the immensely problematic issues we, as a country, are contending with as a result of the ongoing opioid epidemic. Since 1999 the number of Americans that have died from drug overdoses on an annual basis, primarily opioids and especially synthetic opioids in the last 6-7 years, has increased more than five-fold. In both 2021 and 2022, the estimated number of total drug overdoses has exceeded 109,000—the highest numbers ever recorded—and this only reflects those drug overdose deaths the Centers for Disease Control and Prevention (CDC) has been able to confirm. It also does not reflect the number of Americans who have died indirectly from opioid and other drug abuse (not to mention alcohol abuse), including a variety of health related issues with HIV and Hepatitis C leading the way. Accordingly, the opioid epidemic is one of incredible proportions that does not appear to be abating, meaning we will collectively be grappling with its consequences for decades to come.
Additionally, on July 25, 2023, FordHarrison partner Fred Bissinger and his colleague and co-author Dr. Stephen Loyd, the Chief Medical Officer at Cedar Recovery in Mt. Juliet, Tennessee, presented a webinar in which they discussed the primary issues employers need to contemplate in terms of identifying addiction issues in the workplace and how to effectively address them. Those who attended the webinar had an opportunity to hear Dr. Loyd’s compelling personal story of opioid addiction, recovery, advocacy, and treatment of those addicted to opioids, so that they can hopefully navigate the recovery process and carry on with their lives in a productive manner.
This Alert addresses the threshold concern of identifying and initially addressing addiction issues, which might seem simple on its face, but in reality is one of the toughest hurdles that employers face when dealing with employee addiction.
How to Identify Addiction Issues in the Workplace
If you ask any experienced employment law defense attorney to identify the most common and problematic concern they encounter in response to a charge of discrimination or a lawsuit alleging harassment, discrimination, and/or retaliation, the answer almost inevitably will be along the lines of “the immediate supervisor, manager, or both knew about the problem, but did not timely report or effectively address it.” Hence our Firm’s collective emphasis on guiding and training management teams on how to identify, report, and respond to such concerns in a timely manner—while they are still manageable and before the aggrieved employee retains counsel. The goal being to effectively resolve issues in a timely manner for the employee(s) involved, and thereby avoid the legal process, as well as using such scenarios as a “teachable moment” for the employee base as a whole.
That same axiom is true when it comes to the issue of identifying addiction issues in the workplace. By the time most addiction concerns come to a head, either in terms of an employee being disciplined or terminated or involved in a potentially negative life-altering event (e.g., an accident, an overdose, being arrested, etc.), most of the employee’s teammates and management team are aware that the employee had not been himself or herself for a period of time. The signs that something was amiss were readily identifiable based on recent attendance, performance, and behavioral issues, and sometimes based on admissions made by the employee or known issues outside of work, but ignored for one reason or another by the team and management.
As Dr. Loyd discussed in our webinar, he was addicted to opioids for several years before his father finally called him out on the issue and helped initiate his path to rehab. During that time, he was a highly successful internist and medical school professor. However, as his addiction progressed, those who worked with him on a daily basis (nursing staff, fellow doctors, supervisors, and administrators, as well as students) all inevitably noticed changes in performance and behavior that simply did not align with the Dr. Loyd they had known for years. While some of Dr. Loyd’s co-workers and managers had conversations with him touching on relevant concerns, no one directly addressed the issue with him in a sufficient manner to force a direct response. Specifically, no one ever directly asked Dr. Loyd to explain why his behavior and performance had noticeably changed—presumably because they either did not know how to engage in the discussion or were simply not willing or capable of engaging in “positive conflict” by addressing the issue head-on.
Thus, the answer to the question of how to identify an addiction issue in the workplace is simple in concept—when an employee is not himself or herself—that is a sign that something is amiss, and it is time to engage. This struggle, however, is in the implementation process.
It is imperative to train supervisors and managers on the company’s expectation of them as leaders and managers (which are not the same thing) and their corresponding responsibility to pay attention to their employees as a whole, and not just their attendance and productivity metrics. If an employee is “off,” especially if there is a pattern of attendance, performance, or behavioral issues that do not align with stated expectations and past practice, that is sufficient notice of a potential issue to be investigated, regardless of the underlying reason or ultimate outcome.
When to Address a Potential Addiction Issue
In terms of when to address a potential addiction issue, our guidance is both simple and direct—the sooner the better. As noted, when an employee cannot maintain regular and predictable attendance, perform their job in an acceptable manner, or behave as expected, it is time to engage.
The sooner managers engage, the more likely they are to drive such an issue to a positive resolution. Delaying the initiation of “positive conflict” only increases the likelihood an employee will not succeed in his/her employment (which is not good for the employee, and likewise, is not good for the employer given the loss of investment in a once productive employee) or the employee will have a potentially negative life-altering event (affecting him/her and potentially any dependents). In Dr. Loyd’s case, his active addiction extended longer than it might have had one of his colleagues directly addressed the issue with him in a timely manner, which is an all too common scenario.
The takeaway is engage sooner rather than later. Regardless of the ultimate root cause(s), timely addressing issues helps both the employee and employer by increasing the odds of a positive outcome. And in the case of drug addiction, and especially opioid addiction, timely engagement may well save an employee’s life.
How to Address an Employee Who May be Grappling with an Addiction Issue
From an application standpoint, how to engage is the easiest of the issues addressed in this article. Keeping the initial conversation simple and direct will yield the best results. For example:
- “Bob, you have been a successful employee for 10 years and have never had an attendance problem. During the last two months you’ve had more attendance issues that in the prior 10 years. Can you please explain that to me?”
- “Bob, help me understand why you have been struggling to come to work on time the past two months?”
- “Bob, I’ve noticed you having some conflict with your co-workers lately. We’ve always had good team chemistry and you’ve always gotten along well with your teammates. What’s going on?”
- “Bob, your performance metrics over the past few weeks are not up to speed. What’s the deal?”
Depending on the nature of the response, it is a good idea to make it clear to the employee that you are there to assist and want to help him/her succeed. Convey that you and the company care about him/her as an employee and person and are willing to assist. Encourage the employee to communicate with you, and if the employee is not comfortable doing so for any reason, let him or her know you can facilitate an introduction to the appropriate internal resources available to assist. Your goal is to show the employee a go-forward path to assistance and success, whatever that may be, which will hopefully encourage an employee struggling with an addiction problem to seek the help being offered.
You want to avoid accusatory questions like “Bob, you must be on drugs to behave that way,” “Bob, are you high saying something like that?,” etc., which are likely to both alienate and offend the employee, and also undermine leadership and management credibility with Bob (and most likely his teammates, even if they are frustrated and upset with Bob).
That being said, it is critical to use such a conversation to re-set expectations. For example, Bob’s response to the inquiry about attendance issues is “I’m fine. I’ve just has been struggling with some personal issues outside of work and will fix it.” The appropriate follow-up should be along the lines of “Ok Bob. Let me know if I can assist in any way. Please keep in mind that if your attendance issues continue our next conversation will be a disciplinary event, which I prefer to avoid.” Point being Bob is now on notice that the ongoing attendance issues will not be tolerated, and if they continue, there will be real consequences.
Obviously, the tone and tenor of such a conversation will depend on whether this is the first or second such evolution, as opposed to a scenario when the initial session(s) failed to resolve the issue. The first or second such “coaching” session will generally be collaborative and problem-solving oriented, but subsequent conversations will necessarily need to be more discipline-oriented. Either way, the employee needs to be re-calibrated on expectations and consequences, so there is no misunderstanding as to what will happen if the issue is not successfully addressed.