NEW YORK (MainStreet) — One in ten small businesses said they had employees arrive at work in 2013 while under the influence of at least one controlled substance, according to a new study by Employers Holdings, Inc.

The most common substances used by employees were alcohol, marijuana and prescription painkillers, said the business owners in the study conducted by Employers, the Reno, Nev. provider of workers' compensation insurance and services for small businesses.

"Business owners today are rightfully concerned about the use of illegal or judgment impairing substances in their workplaces," said Stephen Festa, chief operating officer for Employers. "It's a disturbing trend that we have seen developing over the past several years with the rise in prescription opioids and the increasing legalization of marijuana."

More than half of small business owners said that the abuse of over-the-counter pain medications could also pose a danger to their employees.

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"To those of us in the workers' compensation insurance industry, prescription opioid abuse is of particular concern," he said. "The Centers for Disease Control has reported that more people die from prescription painkillers than from heroin or cocaine. Opioid addiction has been linked to decreased worker productivity, as well as making workplaces less safe, prolonging disability claims and increasing the risk of death from overdoses."

Both employers and employees have many legal options when it comes to drug testing, abuse and treatment.

Depending on the state, an employer can utilize drug testing as a means of screening employees before commencing employment, said Rachel Jacobson, a labor and employment attorney at Kaufman Dolowich & Voluck, a Los Angeles law firm.

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"The employer also must ensure drug testing, particularly at the hiring stage, is done in a uniform and non-discriminatory way," she said.

If a workplace accident occurs, employers can also consider administering drug or alcohol tests after the accident occurs. State laws regulating drug testing vary and may limit an employer's rights do this, Jacobson said.

An employer must make sure it has a policy in place prohibiting the use of illegal drugs or alcohol at work.

"It is important that the message is clearly sent to the employees that working under the influence will not be tolerated," she said. "If an employee comes to work under the influence, it is completely legitimate for an employer to discipline that employee, including termination."

Some companies have a "one bite" rule, which means employees can keep their positions if they attend a drug treatment program and are randomly drug tested for one year, said Dianne Moretzsohn, a lawyer with McCausland Keen & Buckman, a general practice law firm in Radnor, Pa.

Other companies only allow employees to keep their jobs if they tell the company they have an addiction problem and that they are seeking treatment that is recommended by a physician, she said.

Most treatment programs are a minimum of 30 days and the Family and Medical Leave Act covers up to 12 weeks of unpaid leave.

"Most employers tend to go with the zero tolerance," she said. "It does happen in white collar workplaces as much as blue collar. It is very tricky and there are privacy issues, too. The employer need to make an employee aware that FMLA is available, so having an open dialogue is good."

Starting the dialogue on whether an employee has a drug addiction problem, including prescription drugs often occurs if an employee's behavior is "odd or affecting his or her ability to perform, but no major infraction has arisen," Jacobson said.

"If the employer is not sure if drugs or alcohol is the cause, the employer should confer with the employee to advise that the behavior exhibited is noticeably different and that issues with performance are occurring and that improvement is necessary," she said. "This can often open up the dialogue about what is causing these issues."

Employee Assistance Programs (EAP) can be implemented often through the employer's health care provider and can be an option to helping employees with alcohol or drug issues. An EAP is a voluntary referral program that will typically offer confidential counseling to the employee and the employee can be referred for additional treatment if necessary.

"EAPs can send the message that the employer is sensitive to the stressors in employees' lives, while also keeping employees on notice that they must meet their normal job requirements (even while receiving assistance) and they are not immune from discipline," Jacobson said.

Alcoholism and addiction are considered disabilities that the employer may need to accommodate and has an obligation to accommodate such as allowing an employee to attend in-patient care, Moretzsohn said.

Employees who are legally using prescription drugs may suffer from a disability and an employer's obligations under federal and state disability laws will likely be triggered, Jacobson said.

"Depending on the circumstances, the employer may have to accommodate that legal drug use and its impact," she said. "An employer must have a dialogue with the employee to determine if the accommodation is feasible. This could include changing the employee's shift to a time when the drug's side effects are less likely to arise or transferring the employee to a position where the side effects will not cause safety concerns or impact the employee's ability to perform."

Companies can still prohibit employees from the use of medical marijuana since it has not been approved on a federal level, Moretzsohn said.

"It does not make it ok to have it in the workplace since it is being treated different than prescription drugs," she said. "The law can really change and it depends on the state law. It is not shielded yet because of federal law."


Drug use in the workplace is far more common than most people and employers believe, said Akikur Mohammad, a physician who is board-certified in psychiatry and addiction medicine and teaches addiction medicine at University of Southern California School of Medicine.

"Many employee health insurance programs now cover addiction treatment," he said. "All the leading medical associations, including the AMA now recognize alcohol and drug addiction as a chronic disease, like diabetes or hypertension that must be treated with specific medications and then managed over a lifetime with lifestyle modification and counseling. With evidence-based treatment, addicts can live a quality life and be a valuable asset to businesses."

—Written by Ellen Chang for MainStreet