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The following steps should be considered when preparing to address opioid addiction in an employer's workforce.
1. Assess the employer's work rules and policies and the employee handbook, and, if applicable, collective bargaining agreement(s), with respect to how those rules and policies are implicated when an employee shows signs of substance abuse in the workplace.
• Do they address use of drugs without a prescription, use in excess of the prescribed amount, or illicit drugs?
• Do they address return to work policies for employees undergoing substance abuse rehabilitation treatments?
• Do they address relapses?
• Do they address employee use of prescription drugs at work?
• Do they address return to work policies for employees taking impairing medications, such as the synthetic opioids?
• Are supervisors trained to identify potential substance abuse issues and to contact the human resources department for guidance on handling the situation?
• Is there a job description for each position?
• Is there an interactive process to identify reasonable accommodations for employee impairment due to prescription medications?
• Is there a performance improvement plan for employees who fail drug tests?
• Is there a policy addressing employee notification of supervisors regarding prescription drug usage? Are managers trained to keep such information confidential?
• Is there a policy addressing employee use of medical marijuana?
• Are supervisors trained regarding return to work of employees who have family members with substance abuse? Is support available to the employee or family members under the group health plan, employee assistance plan or other resources to support the recovery and rehabilitation?
2. Review the agreement with the vendor retained to perform the drug testing on employees and the forms used for such testing to verify:
• that the vendor is obtaining the appropriate consents and authorizations prior to administering the test;
• the scope of the test with whom the results may be shared; and
• whether they also test for synthetic opioid use and use of opioids or synthetic opioids in a manner that exceeds their prescribed use.
3. Review any collective bargaining agreements for relevant terms and conditions of employment and restrictions related to on-site evidence of substance abuse, handling of workplace injuries or performance issues that may indicate an employee substance abuse issue and relapse or recurrence issues.
4. Verify that employment policies and/or collective bargaining agreements permit the employer to conduct random drug testing and ensure that there is a program for such random drug testing in operation. Verify that the applicable testing processes require employee consent to perform the drug testing and employee authorization to allow the testing provider to disclose the information to the employer.
5. Identify all of the service providers to the employer's group health plan, e.g., EAP, claims adjudicator, provider network, pharmacy benefit manager, on-site clinic provider.
6. Review the employer's contracts with its group health plan's claim administrator, managed care organization, pharmacy
benefit manager and employee assistance plan.
• Determine whether the contract provides a description of what each vendor is doing to identify potential incidents of substance abuse, such as noting too frequent prescriptions by an individual.
• Identify what each vendor has bound contracted parties to do to combat the opioid epidemic. For example, has the managed care network required its contracted physicians to appropriately limit prescriptions? Has the pharmacy benefit manager required pharmacies to not solicit refills of opioids with refill reminder calls? Will the pharmacy benefit manager provide prescribers of opioids with clear guidelines regarding opioid prescriptions or will the managed care organization require the physicians prescribing opioids with clear contractual requirements and limits? Are physicians encouraged or contractually required by the managed care network to prescribe the lowest dose possible when prescribing opioids?
• Identify whether the plan design and the vendor will limit the size of dosages given for opioid prescriptions to a reasonable number of units for the type of diagnosis involved. This may also involve a plan design change on copayments for opioids where a long-term need is medically required so that prescription size limits either do not apply for certain diagnoses or the copays are adjusted to not penalize those who need to be on opioids as long-term pain treatment. (For example, are there limits on opioid prescriptions following a minor medical procedure, injury or illness to pills for three or seven days instead of 30 days, and requiring precertification for prescriptions or refills of longer duration? If an individual has a diagnosis involving chronic pain, do the plan's vendors have a system that would permit a longer duration prescription for a diagnosis that justifies either repeat refills of seven days with subsequent refills not subject to the co-pay until the 30 day supply is filled?) Plan design changes will need to be made after carefully investigating the various vendor system capabilities to handle new designs with new limitations.
• Identify how each of the parties is taking steps to identify and address opioid abuse and catch opioid abuse in the group health plan's case management and care coordination functions so that the group health plan can use the data for health care operations under and in compliance with HIPAA for the benefit of the participants. Identify what steps each vendor performs after it identifies a person with a potential opioid abuse issue. Case management and care coordination can intervene to help control health care costs and affect better care as part of the care coordination and case management functions which may be permitted under HIPAA as part of health care operations.
• Remind management of the employer's obligations not to take any retaliatory actions.
7. Verify that for purposes of HIPAA the group health plan is separated from the employer and the appropriate business associate agreements are in place with parties providing services to the group health plan, as well as the required plan amendments. Verify that the employer has procedures in place to remain separate from the group health plan and not to access the health plan information for employment purposes.
8. Verify that the employer's HR staff is able to determine when it receives medical information in its capacity as the employer and when it receives medical information in its capacity as the group health plan and that it understands that different rules are applicable based on how the information is received.
9. Verify that the employer keeps medical records it receives in its capacity as an employer separate from other files and protects them to comply with any applicable state laws and the requirements of the Americans with Disabilities Act. Verify that the employer has appropriate procedures in place to protect the privacy of medical information received in its capacity as the employer under either the ADA, FMLA, state worker's compensation laws, or in its capacity as the plan sponsor of the group health plan.
10. Establish procedures to regularly review workplace accident and injury reports to determine if there are any trends that need to be addressed.
11. In monitoring workplace accidents, injury reports, and workers' compensation claims, the employer HR staff needs to be aware of the applicable state laws protecting employees against retaliation for making worker's compensation claims and take steps to avoid creating the perception that there is any retaliation for such claims.
12. Consider developing a flow chart analysis to aid the human resources function in analyzing: a) how the information on medical conditions arrived in the HR department and; b) what the nature of the source of each piece of medical information means to the HR department in terms of which laws apply, the restrictions on what can be done with the information, how it can be used, and what storage requirements and protections apply to such information. This includes identifying potential state laws applicable due to the location of the employee or location of the incident giving rise to the information or the location in which it was transmitted to the employer from the employee.
13. Identify a health information privacy official: an individual in the HR department or other position who will be responsible for reviewing what information has been received, what information may be needed, and how the employer may obtain that information under the various legal restrictions.
14. Identify a set of forms for the employer to use to obtain additional medical information when necessary such as authorizations for the individual involved to sign, and if the legal department is involved, subpoena forms or other document requests, for use with disability plans.
15. Identify the short- and long-term disability benefits offered by the employer and what exclusions may apply in such benefit plans. Identify the medical information the disability benefit plan administrator may need to determine whether an individual is disabled when suffering from an opioid addiction or substance abuse problem, and have authorization forms ready to facilitate obtaining such information from an individual seeking disability compensation while seeking rehabilitation treatment.
16. If the substance being abused is marijuana, THC or cannabis oil, the employer must carefully review the applicable state laws regarding protections for individuals who are being treated with medical marijuana to avoid potential state law retaliation claims.
17. Employers should annually review their group health plan's design and compliance with the Mental Health Parity and Addiction Equity Act, considering its coverage of treatment for addiction and substance abuse, and considering the case laws interpreting what constitutes parity, such as the various methods for treating addictions, inpatient, out-patient, medicine assisted therapies and residential treatment centers.
18. Educate management on identification of potential substance abuse issues and how to address those in a manner that does not put the employer at risk considering all of the various laws that apply to an employer in the context of dealing with substance abuse in the workforce.
19. Identify any requirements to report substance abuse by employees who are subject to licensure or certification requirements to perform their positions. Such identification should include: who is required to report; when is the report required; to whom must the report be made; what is required to be reported; and the consequences of failure to report.
Practice Note: The above list provides a general summary of some of the considerations an employer may want to consider as it seeks to address problems of opioid abuse in its workforce. This is not an exhaustive list, nor is it a list that will apply and address all issues for any particular employer. The facts of each situation need to be considered, including how various benefits are provided, how the information is received, the plans involved, and what working conditions, terms and policies exist that may be implicated by taking actions without first considering whether they are permissible under the current terms and conditions of employment. Employers should carefully consider consulting with a legal team that brings the various disciplines to the table to address the issues involved. This is intended as a high level summary only. Each situation must be carefully evaluated when an employer is developing a game plan to address an employee with a substance abuse issue, like an opioid addiction.