FAQs for Employers

How should a company approach an employee who may be exhibiting signs of substance use disorder?

A suspicion that an employee is struggling with a SUD should be based on direct observations--carefully documented--of performance and behavior, not hearsay.   Signs of potential SUD include:

• Unexplained absenteeism

• Declining work performance - e.g., falling behind on projects

• Accidents at work

•  Changes in workplace behavior, such as sudden unexplained absences during the workday, missing or falling asleep during meetings, or notable decreased participation in group discussions.

In the presence of one or more of these observations, don’t immediately assume a SUD exists.   The employee may have other personal or health issues which explain the behaviors.  It’s reasonable to confidentially approach the employee and inquire in a nonjudgmental fashion about the observed behaviors.   This gives the employee the opportunity to explain the cause and disclose whatever he or she wishes.  

Of course, an impaired employee - for whatever reason - should be removed from safety-sensitive work.   Also, depending on the nature of the job, state law and company policy, drug and/or alcohol testing referral may be required.

What to do if an employee discloses a substance use disorder?

A working knowledge of two federal laws is essential to responding to an employee reporting a SUD.

The Americans with Disability Act (ADA) prohibits employers with more than 15 employees from discriminating against employees because of a physical disability.   Individuals with alcohol use dependency and substance use disorders of prescribed or legal drugs are protected by the ADA, but not those currently using illegal drugs.  Persons with a history of prior SUD or currently in treatment for SUD involving legal or illegal substances are also protected.   Protection means an employer cannot terminate or deny promotion to an individual simply because they have a history of substance use disorder or are enrolled in a drug or alcohol rehabilitation program. 

The Family Medical Leave Act (FMLA) requires employers with more than 50 employees to allow an employee with at least one year’s service (1250 hours)  to take up to 12 weeks of unpaid, job protected leave for treatment of personal serious health issues including substance use disorders.   Leave is also granted for an employee to care for a seriously ill spouse, child or parent.

You can’t ignore an employee’s disclosure of a SUD - the ADA requires a response.   Here are the steps to take:

• Remove the employee from any safety-sensitive work if necessary

• Be supportive and de-stigmatize - recognize SUD as a treatable medical disorder.  Maintain confidentiality.

• Develop a plan through an “interactive process” (ADA terminology) for potential accommodations in a conversation with the employee.  Accommodations requested might include participation in a rehabilitation treatment program, outpatient or inpatient (FMLA).

• Offer resources available through Operation Lighthouse and Shatterproof for guidance in seeking help.

• Offer confidential expert intervention such as provided by an Employee Assistance Plan (EAP) if available.

• Employees using illegal substances are not protected by the ADA but may be offered similar support and consideration before termination.    If necessary, consider offering a “last chance” or “firm choice” agreement which stipulates what the employee must do to pursue recovery and avoid termination.  Supporting and retaining a valued team member struggling with substance use disorder can be a win-win.

• Legal counsel should be consulted to properly evaluate specific situations.