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CMT8824 - SECTION 4: REQUIRED TREATMENT IN THE WORKPLACE

The workplace has been recognized as an important focus for AOD prevention and treatment. Research shows that nearly three-quarters of illegal drug users are employed in full- and part-time jobs. When the effects of alcohol abuse are added, the result is a large impaired portion of the national workforce.

The federal Center for Substance Abuse Prevention (CSAP) estimates that, relative to non-abusers, abusers of AOD are 3.6 times more likely to be involved in an accident on the job, 5 times more likely to be personally injured on the job, and 5 times more likely to file a workers’ compensation claim. Overall, the established costs of loss in productivity as a result of AOD use amounts to $60-$100 billion each year. (22)

In response, by executive order of President Ronald Regan in 1986, all United States federal agencies were directed to establish mandatory pre-employment drug screening, and periodic, random schedules of drug testing afterwards, for all federal employees. They were also directed to establish an employee assistance program (EAP) for all current governmental employees with AOD problems.

In 1988, Congress passed the Drug-free Workplace Act which requires that all companies and businesses receiving any federal contracts or grants must provide for a drug-free workplace. Nongovernmental organizations have been encouraged by the 1988 Act to establish drug-monitoring procedures and EAP services as well.

These acts require that there be a written policy, access to assistance, employee education, supervisor training, and drug testing. The result is that seven out of every eight American companies have established policies for drug testing procedures either as a condition of being hired or as a way of monitoring drug use among employees. (20)

Employment Assistance Programs (EAP) have worked on behalf of employers and employees to identify and refer individuals for AOD treatment. The Rehabilitation Act (RA) and the Americans with Disabilities Act (ADA) cover the AOD abuser to ensure protection from discrimination that can lead to a loss of employment on the basis of their AOD abuse.

The Acts, however, also specify that individuals currently engaged in the illegal use of drugs are not “individuals with a disability” when the employer acts on the basis of such use. Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs. Employers may offer people AOD treatment, but if employees reject the offer of treatment or continue their AOD abuse, the ADA does not necessarily protect people from loss of employment.

Companies with these policies typically offer counseling and treatment under a “return to work” agreement, whereby employees are required to be in treatment and submit to random drug testing or they will lose their job. In a similar way, the Social Security Act covers the diagnoses of AOD dependence and a potential consequence of not complying with treatment is loss of social security benefits.

However, the use of required drug testing by companies and organizations has raised a number of important individual rights issues centering on the Fourth Amendment prohibition against “unreasonable searches and seizures” and Fifth Amendment “due process” rights. In general, the courts have ruled that the taking of a urine sample is not an unreasonable search and seizure if the government requires it and a threat to public safety is involved.

If a business requires it, individual’s rights are somewhat murky because employees typically accept job offers with the assumption and agreement that periodic drug monitoring will take place. If individuals lose their jobs as a result of a drug test violation, the courts have ruled that due process rights have been violated only if the method of screening, analysis, and reporting were unreliable or it could be shown that the screened substances had no relationship to job impairment.

The intent of assistance programs is to ensure that employees and family members have access to confidential assistance when they need it. When problems do appear on the job these assistance programs help managers, supervisors, and employees to constructively address the problems.

There are different kinds of assistance programs including: 1) Employee Assistance Programs (EAP), provided by the employer or jointly by the employer and the union; 2) Member Assistance Programs (MAP), provided by unions, and 3) Peer Assistance Programs (PAP), provided by employers and/or unions and use trained personnel to assist fellow employees with problems.

These programs may deal with a variety of work related problems including health, family, financial, AOD, legal, psychological and other personal concerns which may adversely impact job performance.

EAP programs can be run internally, an option usually only available to larger companies, or externally, where the company purchases all or some of the services from outside companies.

EAP programs are organized and funded in a variety of ways including:

1) fixed-fee contracts where fees are calculated on a per-employee-per-year basis and the company pays this fee regardless of the extent of utilization; 2) a consortium where a number of small employers join to obtain the services of an EAP provider; 3) fee-for-service programs where the employer contracts directly with qualified specialists for specific services and pays only when the service is actually provided; and 4) physician-based services where physicians offer EAP services (including referrals) as an adjunct to their medical practice.

Successful programs generally include:

1) A written policy that is supported by top management (including legal staff), understood by all employees and their representatives, consistently enforced, and clear about what is expected of employees and the consequences of policy violations; 2) A policy statement that clearly defines the employer’s position as to substance use, the kinds of problems covered, how employees get assistance, how client contact is made, and a commitment to confidentiality; 3) Establishment of a AOD prevention program with an employee drug education component that focuses not only on the dangers of AOD use, but also on the availability of counseling and treatment; 4) Development of a program for the training of managers, front-line supervisors, human resource personnel, medical staff, and others in identifying and dealing with AOD users; 5) Establishment of an appropriate AOD testing component designed to prevent the hiring of workers who use illegal drugs and, as part of a comprehensive program-provide early identification and referral to treatment for employees with AOD problems; 6) Creation of an environment where employees will be encouraged to seek help for their AOD problems and where other employees will be encouraged to report AOD use problems; 7) Development of a comprehensive Employee Assistance Program that not only deals with AOD use, but also addresses other related health and welfare issues; 8) Identification of appropriate referral treatment resources in the community with referrals based upon the employees’ and their families’ needs; and 9) The program should be free, with no hidden costs to participants and covered by the employer’s insurance package.

An effective EAP should be designed to meet the following objectives:

1) The program should motivate employees with AOD and other problems to seek help for their problems; 2) The program should be seen by the company as a way to keep valued employees who have developed problems that are impacting their job performance; 3) The goal of the program should be to restore employees’ productivity and enable them to live better lives; and 4) The program should provide this assistance to employees in a professional and confidential manner.

While EAP program may address a number of employee problems, the most controversial area is AOD use by employees. Some companies have adopted a zero tolerance policy that states that any employee found to possess, distribute, or use illegal drugs, whether on or off the job, will be terminated.

Alcohol and prescription drug abuse also might be included, particularly when the operation of dangerous equipment or motor vehicles is involved. Under these policies, there is no chance for remaining employed by the company or being rehired, even following successful treatment.

The advantages of such a policy is that everyone is on notice that AOD users need not apply for employment or, if employed, no AOD use will be tolerated. The employer benefits by not having to incur the costs of AOD treatment or the risks of retaining or reinstating employees with an AOD problems.

The disadvantages of such a policy are that employees would be discouraged from voluntarily seeking help for their AOD problems, the loss of valuable employees who may be able to gain control over their AOD problem with treatment, and possible lawsuits for wrongful termination based upon alleged AOD use.

However, with the passage of the Drug-free Workplace Act, many employers have a mandated responsibility to identify and help those in their employ who have AOD problems.

In addition, many other companies have voluntarily adopted policies and programs to deal with employee AOD problems. Most experts agree that a comprehensive drug-free workplace program is the best means of preventing, detecting, and dealing with employee AOD use.

One of the most important aspects of the program is its confidentiality. Without confidentiality, there will be no trust and the program will not work effectively.

Confidentiality refers not only to the relationship between treatment personnel and the employee, but it also includes not identifying to others in the company employees who are in treatment for their AOD problems.

The policy and practices for AOD testing have to be agreed to by management, employees, and their representatives. It is important that the program be clearly defined and understood by management, the employees, and their representatives.

If random testing is utilized, there should be a clear policy on how employees will be identified for testing.
Chain-of-evidence or custody is also very important, in that, everyone who handles the sealed specimen must sign and protect the specimen.

To help provide direction for this important issue, the National Institute on Drug Abuse (NIDA) has developed drug testing guidelines for federal employees and these standards have been adopted by many companies and organizations. (7) These guidelines, and a great deal of other useful information, may be viewed on the website of NIDA at: www.nida.nih.gov

Prior to turning to our next section, we will offer the trainee some pages related to work-mandated DOA treatment, and the roles and responsibilities of the various parties involved in work-mandated treatment.


Guidelines for Clinicians: Work-mandated DOA Treatment


The clinician must establish a clear picture of the policies and procedures of the client's organization: how they define the responsibilities of the client, the organization, and the treatment provider

The clinician must clearly know the legal guidelines for work-mandated treatment established by the Drug-free Workplace Act

The clinician must fully know state and federal law concerning the release of confidential information in cases of DOA treatment, including CFR 42 Part 2 and HIPAA

We will look at these elements in more detail on the pages that follow.


Policies and procedures: Responsibilities of the client

Under policies and procedures, clients in work-mandated DOA treatment will typically be responsible for:

1) Attendance at treatment / presenting proof of attendance
2) Passing follow-up drug screens
3) Following back to work guidelines, when a formal back to work program is in place
4) Fulfilling normal work obligations and remaining compliant with policies for work performance and conduct

Clients may also be asked to sign a document called a Last Chance Agreement that outlines expectations for treatment


Policies and procedures: Responsibilities of the organization

Under policies and procedures, organizations in work-mandated DOA treatment will typically be responsible for:
1) Making available appropriate DOA treatment resources through an Employee Assistance Program (EAP) or referral within the community
2) Conducting follow-up drug screens
3) Coordinating back to work efforts with the treatment provider
4) Monitoring and documenting client's work performance and conduct, and providing relevant work information to the treatment provider
5) Monitoring and documenting attendance and treatment progress reports as provided by the treatment provider
6) Updating and enforcing policies and procedures to stay current with changes in DOA law

Policies and procedures: Responsibilities of the treatment provider

Under policies and procedures, treatment providers in work-mandated DOA treatment will typically be responsible for:
1) Providing direct DOA treatment services and coordinating adjunct services for addressing other psychosocial problems
2) Monitoring attendance at treatment and reporting attendance to the client's workplace
3) Monitoring treatment progress and reporting relevant and appropriate information about treatment progress to the organization
4) Coordinating back to work efforts with the organization
5) Long-term follow-up of the client's stability and sobriety


Complications to be Aware of in Work-mandated DOA Treatment

In work-mandated DOA treatment, there are a number of complications for the treatment provider to be aware of:
1) Organizations may write policies and procedures that are not compliant with state and federal law
2) Referring parties within organizations may disregard or operate out of compliance with policies and procedures for work-mandated DOA treatment
3) Organizations that do not follow policies and procedures in Drug-free Workplace settings by allowing known substance abusers to continue working in safety sensitive positions incur enormous legal liabilities
4) Organizations may hold policies that do not make allowances for relapse during the recovery process
5) Treatment providers may be asked by the referring organization to assume policing responsibilities that create burdens for the treatment responsibilities, especially in instances of relapse under the policies of organizations that do not allow for relapse under Last Chance Agreements
6) EAP professionals who evaluate referred employees at the request of the employer in the context of fitness for duty exams do not have an obligation to keep evaluation results confidential from the employer, since this function of the EAP professional is considered a consultation to the employer. Under these conditions, however, the EAP professional does have an obligation to disclose to the employee the limitations on confidentiality in this context, and that the nature of the EAP professional's role is consultative - not therapeutic - in nature. (48)



Review Questions Section IV

About what percentage of DOA abusers are employed?

What organizational actions does the Drug-free Workplace Act require of companies?

What are the components of a successful Employee Assistance Program (EAP)?

What is important to know about random drug testing? Who should be included in determining policies about random drug testing?

What are the responsibilities of the organization, the client and the clinician in work-mandated DOA cases?

What are some of the complications the clinician should be aware of in these cases?

 

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