Substance Abuse and Workplace Wellness

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The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.

Companies that embrace workplace wellness may naturally want to also address substance abuse issues in the workplace. After all, substance abuse can undermine wellness efforts, both at the individual and organizational level. Aligning workplace wellness with employee substance abuse issues may be even more urgent given the current opioid crisis in our country. According to a Blue Cross Blue Shield claims analysis in 2017, opioid disorder diagnoses increased about 500% over the past 7 years. According to a 2013 study by the federal Substance Abuse and Mental Health Services Administration, of the 22.4 million illicit drug users aged 18 or older in 2013, about 70% are employed either full-time or part-time. Minimizing employee substance abuse may improve employee productivity, reduce absenteeism, accidents and injuries and decrease medical benefit costs. According to one analysis, workplace substance abuse prevention programs are associated with reduced illicit drug use.

Employers have attempted to tackle substance abuse in the workplace through a number of methods, including drug testing programs, training of managers to recognize the signs of substance abuse, substance abuse policies, coverage for rehabilitation, and Employee Assistance Programs (EAPs). Employers may also consider weaving substance abuse detection and help into a workplace wellness program. Before going down that road, however, it is important for wellness program leaders to understand the laws governing substance abuse in the workplace. This blog explores the Americans with Disabilities Act (ADA) provisions that may affect workplace wellness programs, though other laws may also apply. These other laws may include state laws, the Family Medical Leave Act, and other civil rights and privacy laws.

ADA and Substance Abuse Efforts in Workplace Wellness

A basic question for workplace wellness program leaders is whether questions about substance abuse can be included in a health risk assessment or tests for the presence of drugs can be included in a biometric screen. Recall that the ADA generally prohibits requiring employees to undergo “medical exams” (which would include most traditional HRAs and biometric screens) unless an exception applies. 42 USC § 12112(d). One exception relates to whether the medical exam is job-related and consistent with business necessity. That exception does not apply to workplace wellness programs. The other exception does apply to workplace wellness programs and permits medical exams that are voluntary and part of an employee wellness program.

This exception permits an HRA to include questions about an employee’s drug or alcohol use as part of a voluntary wellness program. The thornier issue is how to address employee responses to those drug and alcohol use questions. What if an employee admits to currently using illicit drugs, or identifies as an alcoholic? How should the workplace wellness program leaders respond, particularly if the employer has a drug-free workplace policy?

Illicit Drug Use Not Protected

The ADA does not protect employees or applicants who are current illicit drug users (whether those drugs are illegal or prescribed drugs being used illegally). Indeed, testing for illegal drugs is not considered a “medical exam” under the ADA. 42 USC § 12114(d). Thus, a wellness program that reveals an employee who currently uses illicit drugs would not violate the ADA by informing the employer about the substance abuse because illegal drug use is not protected by the ADA. However, informing the employer may undermine employees’ willingness to be truthful and accurate in responding to HRA questions, which in turn may undermine the ability for the wellness program to help employees lead healthier lives. Wellness program leaders should consider the importance of gaining employee trust when administering HRAs or biometric screens, as privacy concerns are a big reason why employees refuse to participate in wellness programs.

Employers have attempted to tackle substance abuse in the workplace through a number of methods, including drug testing programs, training of managers to recognize the signs of substance abuse, substance abuse policies, coverage for rehabilitation, and Employee Assistance Programs (EAPs).

Alcoholism is Protected

As for when an HRA respondent admits to being an alcoholic, the ADA considers alcoholism a disability that warrants protection from discrimination. Thus, an HRA that reveals employees who are alcoholics would be subject to the ADA’s confidentiality protections. Those protections require medical information collected from a medical exam to be treated as a confidential medical record, stored separately from the employee’s personnel file, and should not be shared with the employee’s supervisors or managers unless it is necessary for purposes of imposing work restrictions or making necessary accommodations. 42 USC § 12112(d)(3). As long as the alcoholic is otherwise qualified for his or her job and does not violate the employer’s drug or alcohol policy, the ADA would protect that employee from discrimination by the employer.

Conclusion

Employers may try to use their workplace wellness programs to address the growing concern with substance abuse in the workplace. Although the ADA permits inquiries into substance abuse as part of a voluntary wellness program, wellness program leaders must understand the limits and protections of the ADA for substance abusers who participate in wellness programs. Wellness program leaders should also consider the consequence of informing employers of wellness program test results. Even though disclosure may be legal under the ADA in some circumstances, employees may lose trust in the program and either refuse to participate, or not be truthful when answering health questions. In any case, wellness programs seeking to integrate drug-free workplace initiatives should consult with legal counsel to ensure that the integration is compliant and goes smoothly.

Barbara J. Zabawa
President of the Center for Health and Wellness Law, LLC
wellnesslaw.com