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Crisis mode

Opioid abuse is a public health emergency; employers can help mitigate its impact.

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From the pages of In Business magazine.

When a certain type of drug addiction is causing more than 100 deaths per day, and with untold more families worried about addicted family members, stronger treatment networks and support services are urgently needed. Opioid abuse is just that type of scourge, and it should be a chief concern of employers.

For health care professionals, the challenge is to improve the way opioids are prescribed in primary care settings because the widespread need for chronic pain treatment is very real. Unfortunately, so is the potential for misuse, abuse, and overdose from these potent drugs, and primary care providers have expressed concern about insufficient training in prescribing opioids.

More than 11.5 million Americans ages 12 or older reported misusing prescription opioids in 2016, and the 17,087 deaths from prescription opioids reported that year represented a new annual record high among prescription opioids, according to the Centers for Disease Control and Prevention. Overall, 42,249 opioid overdose deaths were reported in 2016, and preliminary CDC data for 2017 indicate that more than 49,000 died from opioid related overdoses last year.

In a rare bipartisan vote of 396–14, the House of Representatives passed a comprehensive bill to address what is commonly referred to as the “opioid crisis.” The law, a compilation of 58 different bills, expands access to treatment and recovery services, allows Medicaid to pay for treatment in certain inpatient facilities that treat mental illness, and identifies alternatives to opioids for pain management and treatment. It also contains provisions for intercepting illegal opioids at mail facilities and to address the use of illicitly manufactured fentanyl, which is driving increases in overdose deaths.

At the time of passage in June, the goal was for the U.S. Senate to act on the measure and send it to President Trump’s desk by year’s end. In the House, the measure was passed with the full knowledge that more legislation would be needed for what is an ever-changing situation, as even some supporters state the law represents only incremental change.

How widespread is the problem? According to the CDC’s 2018 surveillance report, a total of 56.9 million people, or 17.4 percent of the U.S. population, filled at least one prescription for an opioid last year. To nobody’s surprise, the highest percent (26.8) of person-level prescribing occurred among people ages 65 and older, but those ages 55–64 (26.3 percent) and 45–54 (23.1 percent) show that working age people are potential victims, as well.

There is evidence that the medical community in Wisconsin is being more careful, as the state recently announced a 32 percent decrease in opioid prescriptions dispensed since January 2015. However, given the ease at which people can become addicted to opiates — within seven days in some cases — it’s no time to be complacent. “In my view, employers should be taking a very active role in dealing with this crisis,” says Madison attorney Stephen DiTullio. “I read statistics that more than 70 percent of employers in the U.S. are reporting that they are having some impact of some type due to prescription drug misuse, and a lot of that is opioid. From that standpoint, it’s an issue that’s probably going to touch just about every business out there.”

We spoke to a number of area professionals who offered advice to employers about how to help addicted employees. Our expert group includes DiTullio, as well as Shelly Dutch, founding director, and Kim Hurd, mentor coordinator and recovery coach trainer, both of Connections Counseling in Madison, and Dr. Todd Kammerzelt, an addiction psychiatry specialist affiliated with University of Wisconsin Hospitals and Clinics and the Veteran’s Administration Medical Center and a consultant with The Manor, a residential treatment facility in Kettle Moraine. They offered six tips for identifying and helping employees cope with an opioid addiction.

Tip 1: Put it in writing

As part of investing in management education on this topic, Dutch recommends starting with a clear written policy for the business so there are no surprises and people know what to expect when an opiate addiction comes to light. Writing such a policy — in consultation with an attorney — is more of a human resources function, and it should be part of any corporate Employee Assistance Plan, but your legal representation should be well versed in employment law because workplace policies must be compliant with the Americans with Disabilities Act and other employment laws.

DiTullio, an attorney with the DeWitt Ross and Stevens firm, has worked on many employee handbooks and policies, and every handbook he’s done over the past 20-plus years has had some type of a drug-free workplace policy, including a drug and alcohol testing policy. Due to the more recent opioid epidemic, DiTullio says those policies must be updated.

In the past, it was fairly common to focus these policies on illegal drugs, so employees were tested for cocaine, PCP (phencyclidine), amphetamines, and other illegal drugs. If somebody was under the influence of alcohol during the work day, and if there was a reasonable cause to test them, they could get tested for alcohol, as well. However, until recently, most corporate drug policies had not addressed prescription drug use and misuse.

“Those policies need to be taken off the shelf and evaluated because it’s a different world now, and this is such an epidemic that it’s really important to get into the issue of prescription misuse,” DiTullio states.

In his view, the refresh would start with the same types of things — that you have a drug-free and alcohol-free workplace. In regard to drugs, policies should state that employees can’t use, possess, or sell illegal drugs or intoxicants, and they should specify the drugs they are testing for. While that part stays the same, DiTullio says today’s policies also need a statement that says prescription and over-the-counter drugs are not prohibited as long as they are taken in standard dosage or according to a doctor’s prescribed use.

“That’s where we start to get into ADA issues and also, frankly, state law,” DiTullio states. “The Wisconsin Fair Employment Act would probably view it the same way because there are people that are on prescription medications, including opioids for pain, and they are using them properly, they get done using them, and they don’t use them again. That type of drug does stay in your system for a period of time, so if they got drug tested, maybe they have a very reasonable explanation. Certainly, if they are taking the drug pursuant to a physician’s prescription, there is no issue there and there shouldn’t be.

“If there is something they must continue to use during a period of time while the person is working, you would have to take a look at whether there has to be some kind of reasonable accommodation,” he adds. “That should be mentioned in the policy.”

However, employers also can and should include that if employees are taking either prescribed or over-the-counter medications, the employee ultimately is the one responsible for consulting with a physician and/or pharmacist. This is included to ensure the medication doesn’t interfere with the safe performance of a job, which is particularly critical when workers operate heavy equipment in a manufacturing setting, or if they operate a vehicle, a truck, or a forklift.

“Your policy should basically say, ‘Employees, make sure that you have discussed this with your physician and/or pharmacist, and if there are impacts on what you can and cannot do, you’ve got to let us know because then the employer has to figure out whether or not this is something that can be reasonably accommodated,” DiTullio advises. “Then you must go on and basically say if the use of the medication, and again we’re talking about prescribed or over-the-counter, could compromise some type of responsibility the employee has, you have to figure out if it’s best for them to be on a leave or use their vacation.”

The final thing that must be added is a clear statement that the illegal or unauthorized use of prescription drugs or over-the-counter drugs is prohibited because that is something on which an employer can take disciplinary action. This is at the core of the opioid epidemic — that if somebody is continuing to use these medications in a way that was not prescribed, that is a policy violation and grounds for termination. “There is nothing wrong with saying that,” DiTullio states. “That’s different than the ADA accommodation issue.”

Of course, employers that want to salvage the relationship and help employees overcome an opiate addiction must have related provisions in their written policy. Not every employer does this, but many do, DiTullio notes, and those that do typically have a statement that encourages addicted employees to be proactive in seeking help. It should say something along these lines: If you have a drug or alcohol issue, let us know so we can make sure that you are connected with your own resources if you need time off.

“It’s probably going to be unpaid other than maybe some accrued vacation or PTO,” says DiTullio, “but we as a company are not going to discipline you for being proactive in bringing it to our attention.”

At the same time, there should be an expectation in the policy that the employee must complete rehabilitation or counseling, or continue counseling if it’s an ongoing thing, as it often is with drug addiction.

DiTullio highly recommends the adoption of employee assistance programs, and says the provisions encouraging proactivity should be mentioned in EAPs, as well.

In addition to identifying what employees will be tested for, a standard part of the written policy is to outline circumstances under which employees will be tested, the testing procedures, and testing facilities used. According to Dutch, there are screening processes that can be incorporated into the work place, including two that are opioid-related — SBIRT (Screening, Brief Intervention, and Referral to Treatment) and ORT (Opioid Risk Tool) — and present a series of questions to ask employees and discern whether they meet certain criteria.


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