Our nation’s opioid crisis has been described as the deadliest drug epidemic in U.S. history. The number of overdose deaths from opioids has quadrupled since 1999, according to the Centers for Disease Control and Prevention (CDC). And, for every person who dies from a drug overdose, countless Americans and their families are living with the consequences of the addiction and opioidrelated deaths. In a grim reality, the CDC reports that nearly 218,000 people have died in the United States from overdoses between 1999 and 2017. The crisis has created significant questions for employers.
This article will discuss the factors that led to the crisis, the government response and an update on opioid litigation against the pharmaceutical companies. The article will then explore some employment-related issues involved in addressing the opioid crisis. This will include recommendations that have been created as a result of the crisis.
1. Background: The Development of the Opioid Crisis
As noted in a recent study done by the Bipartisan Policy Center (BPC), the current opioid crisis has developed in three waves. See Tracking Federal Funding to Combat the Opioid Crisis (March 2019). The first wave of overdose deaths was related to the development and proliferation of new pain-killing drugs, such as oxycodone formulations and Percocet. These pain medicines were marketed as cure-all solutions to pain. The pharmaceutical companies, with the assistance of physicians and pain clinics, became more and more aggressive in the marketing of these new and stronger pain medicines. Unfortunately, due to the highly addictive nature of these medicines, a crisis developed in the overuse and misuse of these drugs.
In 2010, the problem was exacerbated by the development of OxyContin (which was erroneously marketed as a nonaddictive alternative to the other addictive pain medicines on the market). While Federal and State governments worked to limit access to these prescription drugs, a second wave of drugoverdose related deaths arose from the increasing use of heroin. This wave developed as access to prescription opioids became more limited. Heroin became a cheap and deadly alternative to legal opioids. The new wave of heroin use was not limited to urban areas, but often affected small towns and rural communities. Studies have confirmed that this new wave of heroin addicts often began the addiction process after being introduced to legal, prescription painkillers.
As the BPC identified in its report, the third wave of the crisis is “marked by the increasing availability of illicit fentanyl and fentanyl analogs and increasing rages of overdose deaths involving synthetic opioids.” The drug formulations have been responsible for many of the more recent overdose deaths. These new illicit drugs are both “cheap and powerful.” As the BPC points out, this combination “has contributed to the skyrocketing deaths from total opioid overdoses in the last few years.” See Tracking Federal Funding to Combat the Opioid Crisis, (March 2019).
The increase in opioid use and overdose deaths has placed a heavy toll on American society. The crisis has stretched all of our government systems, including private and public medical systems, police and fire resources, social service networks and other government entities. The crisis also weighs heavy on the families, with the deaths leading to a cycle of tragic consequences for the communities and surviving family members. One dramatic example of the impact of the crisis is that the opioid deaths have led to a dramatic increase in the need for foster care for the children left behind.
The Government Response
Increasingly, additional resources are needed to address the epidemic. Both federal and state governments have jumped in to address the problem with programs and funding. Congress has dramatically increased federal money available to respond to the crisis. Federal programs and funding have included a broad array of solutions, including increasing funding for law enforcement, a step up in DEA funding for interdiction and programs and funding for addiction services, prevention, substance abuse and recovery. The CDC also has programs that are funding critical research into the problem of addiction and overdose. This includes the development and funding of an early warning system, including monitoring prescription practices. This information is shared with federal, state and local entities.
The federal response has included passing of some significant legislation and funding, including the Comprehensive Addition and Recovery Act and, in 2016, the Cures Act. This legislation, designed to help stem the crisis, led to the authorization of more than $1 billion dollars of funding for grant programs. More recently, Congress passed the Support Act, designed to help prevent opioid misuse and to increase access to treatment. The Act also permits Medicare to provide coverage for opioid treatment. In 2017, the Trump administration also declared the opioid crisis a public emergency. Included in the federal government’s response is increased funding of criminal justice grant programs. The Department of Justice has developed several key programs designed to address opioid abuse. The programs include funding for first responders and treatment providers on the frontlines of the crisis. They also include many programs that are designed to assist the states in addressing the myriad problems created by the crisis.
Most states have followed the lead with their own programs and funding designed to help address the opioid epidemic. The federal and state response is ongoing, and additional efforts are expected.
Opioid Litigation: Actions Targeting the Pharmaceutical Industry
In addition to the federal and state legislative response, a number of court actions have been filed against the pharmaceutical companies involved in marketing prescription opioids like OxyContin. The litigation seeks to hold “big pharma” responsible for the impact of opioid crisis. Multiple state attorney general offices have filed suits alleging that some of these companies improperly marketed the opioids and misled the public about the medications’ addictive nature. The main focus has been on the National Prescription Opiate Litigation venue in Ohio. This case has consolidated thousands of federal lawsuits brought against various pharmaceutical companies. The suits include county governments, municipalities, hospitals and other litigants. The U.S. Justice Department has intervened and is participating in the action. There is some belief that this case will lead to a global settlement of these opioid-related cases.
While the Ohio litigation and other similar cases are pending throughout the United States, one of the most high-profile cases has gone to trial as of the date of this article. That case, brought by the Oklahoma Attorney General against several pharmaceutical companies, alleges that the drug companies falsely claimed that the pain-killing medications they marketed were safe for use. The Attorney General has alleged that the marketing of these prescription opioids was deceptive and misleading and led to a “devastating health crisis” in the state. This case will prove to be a critical first view at how other opioid cases will fare before a jury. The implications will be significant.
2. Employment Issues in Dealing with Opioid-Addicted Employees
What Role Can Employers Play
As many businesses – both large and small – have discovered, the opioid crisis is having a significant impact on the workforce, especially given that opioids are commonly prescribed to treat work-related injuries or conditions protected under the Americans with Disabilities Act (ADA). This has left employers grappling with issues of lost productivity, higher absenteeism, greater risk of workplace injuries, an increase in positive drug tests, workplace theft and higher healthcare costs. Many businesses are even experiencing labor shortages due to more difficulty in hiring and retaining a sufficient number of workers who can successfully pass a drug test, leading some employers to scrap their drug-testing policies altogether.
In response, employers are being urged to become an integral part of a massive effort to help educate, support and rehabilitate opioiddependent workers. But how?
One solution is to develop a policy that promotes a drug-free workplace and also helps provide support for those who succumb to addiction. While employers cannot tolerate workplace drug use, they can develop a five-pronged approach to addressing drug abuse issues that arise in the workplace. This program would include: (1) adoption of a comprehensive, written drug-free workplace policy, (2) detailed and comprehensive supervisor training, (3) an employee education and awareness program, (4) a comprehensive employee assistance program (EAP) and (5) a drugtesting policy. This five-pronged approach to the crisis will assist your managers and employees by providing educational resources and better access to treatment.
As a part of this approach to the problem of workers who have been caught up in the opioid crisis, many employers are actually shifting away from zero-tolerance drug policies and instead turning to more proactive measures. In adopting this approach, an employer may seek to implement the following policies and/or program changes:
• Reviving “last-chance agreements: These agreements will offer drug-dependent employees a second chance to get clean – as opposed to immediate termination. The agreement will be used after the first positive drug test and will condition continued employment on the worker admitting addiction and successfully completing a treatment program. The last-chance agreement can help provide employees with an opportunity to obtain treatment and get back into the workforce.
• Expanding supervisor training program: Employers should consider implementation of supervisor training to include proper methods for detecting the signs of drug use, how to conduct fitness-for-duty evaluations, when and how to do reasonable suspicious drug testing and procedures for assisting employees when reaching out to EAPs or other treatment programs for help with their addiction.
• Offering employee education programs and considering adopting an Employee Assistant Program: Employers also should consider adopting an education program for all employees to provide information on the harmful effects of opioid abuse, recognizing signs of drug abuse, proper handling and storage of medicine at home and how to access treatment for a worker or loved one. Employers also should consider coordinating with the medical insurance provider to consider the benefits of offering an Employee Assistance Program.
In adopting these proactive steps, employers will increase morale and help reduce the harmful impact of the addiction process. Of course, these steps should not substitute for appropriate disciplinary actions and/or termination for drug-related workplace misconduct when appropriate, such as on-the-job impairment, tardiness, absenteeism, workplace accidents and theft.
Interplay with the ADA
Employers must also understand the interplay between illegal drug use and the ADA. Under the ADA, employers are prohibited from asking about an employee’s disability, illness or addiction. In most cases, employers only learn of an employee’s addiction indirectly from co-workers or suspect it due to workplace misconduct.
In the rare event that an employee voluntarily reveals his or her addiction, the employer will need to determine if the worker has a “qualified disability.” In this case, an employer is obligated under the ADA to provide reasonable accommodation for the worker – such as an unpaid leave of absence or schedule adjustments to attend treatment – unless it would be an undue burden.
A Drug-Free Workplace and Drug-Testing Programs and Expansion of the Drug Panel: Testing for Synthetic Opioids
Recent growth of the opioid epidemic has also raised serious questions as to what can be done to tighten employer drug-free workplace programs. As noted above, a starting point for many employers is developing a drug-testing procedure that meets recognized standards. The policy should focus on appropriate testing procedures done by competent labs and include provisions for maintaining the dignity of the employees, as well as appropriate safeguards for confidentiality.
In connection with testing, there have been some recent changes in the standard tests to keep up with the use of synthetic opioids. On January 23, 2017, the Department of Health and Human Services (HHS) revised the Mandatory Guidelines for Federal Workplace Drug Testing Programs. These changes became effective October 1, 2017. Organizations that fall under the HHS standards were required to comply with new panel standards. Following suit, the U.S. Department of Transportation (DOT) also adopted this change to help target the opioid crisis. Specifically, these regulatory changes are designed to help update the drug panel to identify the semi-synthetic opioids that are at the heart of the crisis.
As of January 1, 2018, DOT-regulated companies that conduct drug testing are required to expand drug testing panels to include several semi-synthetic opioids. To capture new opioid-based drugs, DOT has added four semi-synthetic opioids – including oxycodone, hydrocodone, oxymorphone and hydromorphone – to its standard five-panel drug testing program. These drugs are known by their more common trademark names: OxyContin, Percodan, Vicodin, Lortab, Norco and Dilaudid. This final rule applies as of January 1, 2018, for all DOT modalities and employers in DOT-regulated industries subject to 49 CFR Part 40. This includes motor carriers (truck companies and business using regulated trucks), railroads, mass transit, aviation and pipeline employers. However, regardless of whether an employer is regulated by DOT, the crisis should compel any company performing drug testing to contact their laboratory to confirm that the provider is using the expanded drug panel to test for these new synthetic opioids.
Employers should be aware that the new expanded panel likely will involve some increase in costs. The change is also likely to lead to a significant increase in positive test results, according to recent studies.
The DOT final rule also confirms that only urine specimens are authorized for testing. In the final rule, the DOT suggests that other forms of testing may be considered in the future, but confirms that DOT does not currently permit point-of-collection testing, hair testing or oral fluid or swab testing.
3. Conclusion: Development of An Action Plan
The opioid crisis is now a part of the national landscape, and despite the best efforts of our government and healthcare providers, the crisis will continue to affect the workforce. Given the impact in human terms and the financial impact to companies’ bottom line, it is important for employers to stay on top of the opioid crisis by reviewing their current policies and procedures.
Development of a comprehensive response should include a review of hiring practices, workforce education, supervisor training, discipline and discharge, consideration of an employee assistance program and lastchance agreements and updating drug-testing procedures and policies.