By Lynne Curry, Ph.D, SPHR bio
He’s one of your best litigators, but is he worth the risks he takes that could backfire on the practice—or are there ways to mitigate those risks? Rumors abound fueled by his erratic behavior and the behavior changes that his regular trips to the bathroom create. You suspect substance abuse, but if you tackle these problems, will you get trampled?
She’s a great employee and you have tremendous sympathy for what she’s gone through in recent years, with her husband’s death and then her car accident a year ago. You cheered when she returned to work, and allowed her to work short days as needed. It’s been a year now, and she no longer complains about excruciating headaches. Instead, her coworkers complain that she seems off, snaps at them or clients, and takes regular, unexplained breaks to her car in the parking lot.
The elephant in the law office
Substance abuse of legal and illegal drugs has become epidemic. Associated problems include lost productivity; absenteeism; injuries and fatalities; reputation damage from poor decisions; and an increase in health care, legal liabilities and workers’ compensation costs.
As a law office administrator, here’s what you need to know:
- Seventy percent of the estimated 14.8 million Americans who use illegal drugs are employed.
- Addicts miss ten workdays for every one missed by other employees and are only two-thirds as productive as the average worker.
- Addicts are five times more likely to cause accidents in the workplace that injure themselves or others, and five times more likely to ask for workers’ compensation.
- In the decade prior to 2014 nearly half a million Americans died from drug overdose, with 18,893 Americans dying in 2014 of prescription pain relief overdoses.
- Heroin-related deaths increased 26% from 2013 to 2014, totally 10,574 deaths in 2014. Past misuse of prescription opioids is the strongest risk factor for heroin initiation and use.
What can you as the administrator and employer do?
1. Know the signs
Although addicts are experts at lying and covering their tracks, you can be on the outlook for signs of substance abuse. These include:
- inconsistent on-the-job performance;
- frequent small accidents;
- frequent tardiness or unexplained absences;
- disorientation or confusion and inability to perform regular tasks, and
- unusual behaviors such as hyperactive/manic activity, paranoia or a sudden lack of concern over personal hygiene.
2. Craft policies and standards
You can prohibit the use of illegal drugs in the workplace, knowing that if you create a policy and uncover a violation, you have to apply the policy in a non-discriminatory manner unless you have a solid business-related justification.
You can require the same performance and conduct standards of those who use drugs as you would of any other employee. As a qualifier, the Americans with Disabilities Act may cover employees who use and even overuse legally-prescribed drugs. As an employer you may need to accommodate to an employee who is qualified, i.e., able to perform his/her job.
Reasonable accommodation might include a modified work schedule or a leave of absence so an employee can get treatment or attend counseling sessions. Be aware that you can’t ask an employee probing questions such as “Do you think you might be overusing painkillers?” Saying these words identifies a perception of a disability and false accusations of disability violate the ADA. Interestingly, if your employee denies having a problem, you may not be required to provide accommodation as how do you accommodate a problem that doesn’t exist?
3. Get recognition training and establish procedures for drug-testing
If you have a policy allowing “reasonable suspicion testing,” and your firm’s employees know they may be subject to reasonable suspicion drug testing, you can require employees you suspect of work-day drug use to submit to testing. Your suspicions can stem from direct observation by you or another employee of signs or symptoms, or from physical evidence of illicit substances.
According to attorney-turned-HR consultant Rick Birdsall, “It’s important that you get baseline recognition training for drug use and abuse so you can substantiate the basis for your reasonable suspicion determination.” The Internet offers a variety of online courses. It’s also safest when at least two supervisory personnel concur that there is reasonable suspicion.
If you do suspect problematic drug abuse, you can send the employee to a drug testing facility. If you don’t have easy access to a local drug-testing facility, your nearest medical facility may be able to accommodate your needs. Don’t, however, ask the employee under suspicion to drive him or herself to the testing site.
4. Address the behaviors
“Whether or not your firm has a substance abuse policy,” says Birdsall, “focus on the inappropriate behaviors and not what may or may not be causing them. As the administrator, it’s your job to address the behaviors. Hopefully, this will help the employee realize they have a deeper issue they need to confront.”
5. Prepare for resistance
Finally, you may experience backlash if you tackle a high-revenue generating or high status employee who has a problem. Your firm’s principals may not want to deal with this problem, or may even have an “if you investigate him/her, what about me” fear.
Worse, how do you handle a high-dollar revenue-producer’s clients, particularly if the attorney excels at client relations or the attorney’s abrupt departure would compromise current cases? Your firm principals may decide to turn a blind eye on this situation. Unfortunately, that compromises how you handle all other employees with similar problems. While you can partially moderate this danger by providing the highly valued producer or all employees access to an employee assistance or rehabilitation treatment programs, there aren’t easy answers.
Sources include:
https://www.ncadd.org/about-addiction/addiction-update/drugs-and-alcohol-in-the-workplace;
https://www.promises.com/articles/addiction-intervention/employees-substance-abuse-problems/;
http://www.cdc.gov/media/releases/2015/p1218-drug-overdose.html;
http://www.cnn.com/2015/12/18/health/drug-overdose-deaths-2014/
http://www.questdiagnostics.com/home/companies/employer/drug-screening/testing-reasons/reasonable-suspicion.html
