As of June 2020, 13% of Americans reported starting to use drugs or alcohol, or increasing substance use, as a way of coping with stress or emotions related to COVID-19. Substance abuse isn’t a problem that only affects people when they’re at home; employers know that working Americans struggle with substance abuse at work, too, and many report personal experiences with its impact on an individual’s performance during the workday.
Ashlee Brennan, Senior Compliance Counsel, and Rachel Biederman, VP Marketing, sat down to discuss employer considerations around substance abuse, recovery and protected benefits, which may be available to employees.
Rachel: Is substance abuse considered a serious health condition? Is it a covered disability under the ADA (Americans with Disabilities Act) or a Serious Health Condition under the FMLA (Family and Medical Leave)?
Ashlee: Sometimes… it depends. There are recognized diagnoses and disorders which are the underlying disabilities that may be causing an employee to struggle with substance abuse. [NOTE: MDGuidelines is a reliable source for employers who want access to evidence-based guidelines on conditions like anxiety disorder or major depression that may drive substance abuse.] Like other behavioral health concerns, such as anxiety or depression, it is important for an employer to treat each employee individually and evaluate any accommodation or benefits that may be available to the employee. This interactive and individualized process ensures employers are meeting their obligations under disability protection laws, as well as provides unique solutioning for each unique employee or employer scenario. With regard to FMLA, it’s important to evaluate under the definition of Serious Health Condition. Treatment for substance abuse may be a serious health condition if the conditions for impatient care and/or continuing treatment are met.
“During National Recovery Month, we celebrate the millions of Americans who have achieved recovery and reaffirm our commitment to helping more Americans overcome substance use disorder and reach recovery. We also support those who are still struggling to achieve recovery and dedicate ourselves to overcoming these challenges together.”
– President Joseph Biden, from “A Proclamation on National Recovery Month,” August 31, 2021
Rachel: That sounds like a tough evaluation for an employer to make. They may not recognize the underlying condition or be able to evaluate whether it could cause a substance abuse problem.
Ashlee: I hear that it is extremely challenging for employers to know when they should address an employee’s behavioral health concerns. When an employee is displaying unusual behaviors that are atypical for that employee (example: falling asleep between meetings or erratic behavior while at work, including emotional outbursts or manic episodes), employers have an obligation to refer that employee to information regarding any leave or disability benefits that the employee may be entitled to. At a minimum, this will cover the employer’s obligations under the FMLA (Family and Medical Leave Act), many state laws, and ERISA (Employee Retirement Income Security Act), and at a maximum, may provide a struggling employee with a much-needed resource.
Rachel: Could a substance abuse problem ever trigger a valid ADA claim?
Ashlee: Absolutely. Think of an employee who is pulled in for a personnel review with their manager to discuss concerns about the employee falling asleep in the break room and not reporting back to the sales floor on time. During the discussion, the employee discloses that they have been struggling with managing their medications, and it’s making it difficult for them to sleep. Once the manager is aware that there may be an underlying health-related concern, they have a duty to refer the employee to human resources or their third-party benefits administrator for evaluation of potential benefits. Once more medical information is obtained during the evaluation process, the employee may be advised to open a disability claim if they plan to access treatment. Many short-term disability policies will provide wage replacement to an employee who has an underlying disability and is seeking treatment.
Rachel: That’s a good example. But what if the employee does not disclose any issues that are potentially disability-related? In your example above, couldn’t it also just be a new parent, who is simply tired from being up half the night with a baby?
Ashlee: Good point. This is the fine line that employers and site managers must walk. Offering benefit or leave information to the employee is always a good strategy for employers who want to support their employees and protect themselves from potential compliance issues. Under the FMLA, the employer’s obligation begins once it is on notice that the employee needs a leave of absence or an accommodation related to a serious health condition or disability. The exact requirements depend on what the employee discloses, as well as other factors, like the state in which the employee works. At a minimum, if a manager has a suspicion that underlying mental health issues may be a factor, it is better to be conservative and offer benefit and leave information, giving the employee the opportunity to decide if they would like to apply for the available benefits.
Rachel: What if an employee accepts the offer of a leave of absence to seek treatment? What can an employer communicate to other team members, or supervisors, regarding the reason for the absence?
Ashlee: Great question. The same confidentiality and protective rules apply to an employee who is seeking treatment for substance abuse that would apply to any employee taking a leave of absence due to a serious health condition. Therefore, it is wise for these types of medical conversations and records to be kept separate from the personnel file and managed by an HR team member or third-party administrator. This is to ensure there are no concerns of unfair or disparate treatment by the employee’s direct supervisor or management team and to protect the employee’s privacy.
Rachel: It seems like the elephant in the room is that, in our culture, substance abuse is not always regarded as a health condition – a lot of people in America still treat it like a personal problem, with stigma and shame attached to it. And there is clearly a risk to employers who still take this approach with employees who are struggling. Based on our conversation, it seems they could find themselves on the wrong side of an ADA claim or DOL (Department of Labor) investigation.
Ashlee: I think that’s where HR professionals and professionals in the leave of absence and benefits space like us, come in. When educating the workforce on available leave and disability benefits, professionals in the absence space need to keep educating their colleagues and leaders on mental health benefits and appropriate leave options that are there to help all employees facing disability challenges. The ultimate goal for many employers and managers is a healthy, happy, and productive workforce; being transparent about benefits and protections provided to employees who are struggling will help employers meet that benchmark in a variety of ways. Please note that employers should always reference the most up-to-date DOL and EEOC (Equal Employment Opportunity) guidance as well as seek guidance from its own legal counsel as compliance requirements are constantly changing.
Need Help? If you’re in crisis or need help with a substance abuse problem, the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration has a National Helpline, 1-800-662-HELP (4357), (also known as the Treatment Referral Routing Service) or TTY: 1-800-487-4889 offering confidential, free, 24-hour-a-day, 365-day-a-year, information, in English and Spanish, for individuals and family members facing mental and/or substance use disorders. This service also provides referrals to local treatment facilities, support groups, and community-based organizations. Callers can also order free publications and other information.
 “Mental Health, Substance Use, and Suicidal Ideation During the COVID-19 Pandemic” — Centers for Disease Control, United States, June 24–30, 2020
If you’re looking for assistance managing leave of absence or accommodations or to ensure compliance across your organization, ReedGroup has solutions for you. Review our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.