Category: Labor & Employment

‘ABC Test’ for Independent Contractors Set to Take Effect in California Jan. 1

As 2019 draws to a close, every business with a California presence should consider evaluating its workforce in the Golden State to ensure compliance with AB 5, which will be effective Jan. 1, 2020.

Through AB 5, the California legislature codified and expanded the reach of the so-called “ABC Test” for determining whether a worker should be classified as an independent contractor. This new law expands the reach of the California Supreme Court’s Dynamex decision which applied to coverage under the California Industrial Welfare Commission’s Wage Orders. AB 5 applies this new test to businesses under the California Labor Code and the California Unemployment Insurance Code.

Currently, California businesses are subject to a variety of tests of employee status, depending upon the law in question. Under most federal and California laws, the common law agency test applies. For workers’ compensation laws, the California Supreme Court adopted an “economic realities” test 30 years ago in S.G. Borello & Sons v. Department of Industrial Relations.

However, as of Jan. 1, 2020, the default standard for independent contractor treatment will be the ABC Test.

The ABC Test significantly narrows the scope of work for which businesses may classify workers as independent contractors, rather than employees, and expands the application of this new standard to nearly all employers doing business in California.

Businesses that do not adapt to the ABC Test may face an increased risk of claims from workers asserting that they were misclassified as independent contractors, on an individual and class or collective basis.

ABC Test Explained

Under the ABC Test, a worker is assumed to be an employee unless the business demonstrates:

A. That the worker is free from the control and direction of the hiring entity in performing the work, both in the contract for performance and in fact

B. That the worker performs work that is outside of the usual course of the hiring entity’s business

C. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity

It is Prong B of the test that will likely cause the most difficulty for companies that regularly engage independent contractors.

Prong B excludes from the assumption of employee status workers who perform duties outside the “usual course of the hiring entity’s business.” While AB 5 does not specifically define the phrase, many businesses use contractors to help them perform their regular business. California courts are expected to be tasked with interpreting the scope of this requirement.

Many industries lobbied hard to obtain exemptions from the ABC Test. The new statute excludes seven different categories of occupations or business, each with its own separate test for qualifying for the exclusion. These exclusions cover diverse occupations ranging from professionals such as architects and lawyers to non-professionals such as grant writers, tutors, truck drivers, and manicurists. Each category has a slightly different requirement to qualify for the exclusion from the ABC Test. However, qualifying for the exclusion from the ABC Test merely defaults the workers to a determination under the Borello test. Complicating matters further is that for all these occupations, a determination of employee status under federal law, such as under the National Labor Relations Act, likely remains under the common law agency test.

Application and Enforcement

While the California Labor Commissioner is officially tasked with enforcing many of the provisions of AB 5, claims of worker misclassification will more commonly be asserted in private civil actions either individually or on a class basis. In other words, companies will increasingly see independent contractors bring claims for wage and hour law lawsuits or class actions (i.e. overtime claims, meal and rest break claims, wage statement claims, etc.).

Employer Takeaways

Although several industry groups are expected to challenge the new law, businesses operating in California should review and update their practices relative to independent contractors before Jan. 1, 2020 – whether through potentially reclassifying independent contractors as employees or revising independent contractor agreements.

© 2019 BARNES & THORNBURG LLP\

More on independent contractor compliance via the National Law Review Labor & Employment law page.

Dear Former Employee, Here Are a Few Things I Want You to Know

Do you provide terminated employees with information regarding their employee benefits upon termination? If not, consider doing so now—especially if you typically provide a lot of your benefits information on your intranet site, which employees will lose access to upon termination. Even though there is generally no legal requirement to do so, providing departing employees with a letter that includes important reminders and deadlines related to their benefits is beneficial for two reasons: (1) it will save your HR department time by reducing the number of benefits-related inquiries they receive from former employees, allowing them to focus their time on more valuable tasks, and (2) the letter can help defend against a claim by a former employee who loses benefits because they missed a deadline.

Here is a non-exhaustive list of items we recommend including in your letter to exiting employees regarding their benefits:

Remind them of important dates and deadlines, and provide them with other relevant information regarding their benefits, including:

  • The date their medical and other insurance coverages will stop
  • Whether their accrued vacation will be paid out
  • When they can expect to receive their last paycheck
  • If applicable, the deadline to exercise their outstanding stock options
  • Their right to convert their group life insurance coverage to an individual policy
  • The deadline to use their Flexible Spending Account (FSA) balances

    **Note that California recently passed a law that actually requires employers to notify employees starting January 1, 2020 of any deadline to withdraw funds from their FSAs before the end of the plan year, such as when an employee terminates employment.By drafting this letter now, you can get ahead of this requirement!

  • If applicable, the date that their non-qualified deferred compensation payments will begin

Provide them with a list of important documents they should be watching for in the mail to prevent employees from inadvertently throwing these important documents away, including:

  • 401(k) or pension distribution packets
  • COBRA election packets

Remind them to update you and your plan administrators if their address changes (both residential and email addresses), and provide them contact information for whom to send updated information, since you will need this information to send out their final Form W-2 and your plan administrators will need it to be able to provide plan information and notices.

As mentioned above, this is a non-exhaustive list. Consider gathering your HR and benefits professional staff together for a 15-minute brainstorming session about other topics to include. We’re sure you’ll come up with other helpful items.

© 2019 Foley & Lardner LLP

Indiana Federal Court Gives Frostbitten ADA Plaintiff The Cold Shoulder

The U.S. District Court for the Southern District of Indiana recently granted summary judgment on behalf of a logistics employer in a case alleging discrimination under the Americans with Disabilities Act (ADA). The court found that because the plaintiff employee could not work in the freezer area of his employer’s warehouse, as was required for his job, he failed to establish that he was a “qualified individual” with a disability.

In Pryor v. Americold Logistics, LLC, the defendant employer operates a cold-storage warehouse that “provides temperature-controlled food warehousing and distribution services,” with “five cooler rooms, two freezer rooms, a loading dock, a designated battery-changing room, and a small office.” The plaintiff was a Lift Truck Operator (LTO) who filled orders by picking items from the various rooms of the warehouse and wrapping them on a skid for pickup by another employee. He had previously “suffered severe frostbite on his left hand after he spent three-quarters of a shift in the freezer with defective gloves,” and due to his prior frostbite “exposure to the freezer’s extreme cold caused pain and risked further injury.”

After treatment (and intervening stints of alternate duty), the plaintiff employee “reached maximum medical improvement” and was put on “a permanent restriction of exposure to the freezer for no more than thirty minutes per workday.” The plaintiff’s LTO role, however, required nearly constant exposure to subzero temperatures. When the plaintiff did not return from leave, he was terminated.

The plaintiff alleged that his employer “discriminated against him by failing to provide a reasonable accommodation for his disability and by terminating his employment.” The employer argued that the plaintiff was not a “qualified individual” under the ADA because “he could not perform the essential duties of an LTO with or without a reasonable accommodation.” The district court held that the plaintiff had not “presented sufficient evidence that he was able to perform the essential functions of his job with a reasonable accommodation,” and thus granted summary judgement in favor of the employer.

The court explained the employer’s judgment as to which job functions are essential is entitled to consideration. And with regard to the essential functions of the LTO role, the court found that the LTO role required “substantial exposure to freezer temperatures” each workday. The court explained that, because the plaintiff admittedly could not work in the freezer for more than thirty minutes per day, “he could not perform the essential functions of his LTO order selector position without reasonable accommodation.” He was thus a “‘qualified individual’ under the ADA only if he could perform the essential functions with reasonable accommodation.”

As for the question of what a reasonable accommodation might entail, the plaintiff argued that he could have been reassigned to a non-freezer position, a temporary “cooler-only” position, or a position in the loading dock or office. However, the court stated, “it is the plaintiff’s burden to show that a vacant position exists for which he was qualified.” The court explained that the ADA does not require an employer to “create a new position or transfer another employee to create a vacancy,” or to “transfer a disabled employee to a temporary position on a permanent basis.”

Ultimately, with regard “cooler-only” positions, the court held that the plaintiff failed to identify any vacancies, and noted that pursuant to a union contract, those positions had to be filled according to seniority. With regard to the vacant loading dock or office positions, the plaintiff failed to demonstrate that he was qualified. Thus, the court held that the plaintiff failed “to create a genuine issue of material fact whether reassignment was a reasonable accommodation,” and summary judgement in favor of the employer was appropriate.

The key takeaways from the Pryor decision for employers facing ADA claims are that employees must still be able to perform the essential functions of their job, and that courts should consider the employer’s determination of which job functions are essential. Moreover, the Pryor decision reaffirms that the ADA does not require employers to create positions or vacancies as part of the interactive process.

© 2019 BARNES & THORNBURG LLP
For more ADA cases, see the National Law Review Labor & Employment law page.

Three NBA Players Suspended for Drug Violations

The NBA commenced its new season on 22 October with the battle for Los Angeles, as Kawhi’s Clippers edged the Lakers this time. But, less than three weeks into the new season, attention has turned to off-the-court matters; three NBA players who were active on rosters last season have been suspended for testing positive for banned substances.

Wilson Chandler of the Brooklyn Nets tested positive for Ipamorelin, a growth hormone during the summer. The number 1 pick of last year’s draft, DeAndre Ayton tested positive for a diuretic whilst the Atlanta Hawks’ John Collins tested positive for Growth Hormone Releasing Peptide-2, a synthetic drug found to increase appetite and food intake.

The three players have been suspended without pay for 25 games for violations of the NBA/National Basketball’s Player Association (NBPA) Anti-Drug Program.

The terms governing the Anti-Drug Program are set out in the NBA’s Collective Bargaining Agreement (CBA), entered into between the NBA and the NBPA. The NBPA negotiates the terms of the CBA on behalf of NBA players. The CBA regulates a wide variety of matters relevant to the operation of the NBA.

Amongst other things, the CBA governs:

  • the share of “Basketball Related Income” between the players and the league;
  • the team salary cap and tax structures;
  • rules on player contract terms, including salaries and duration;
  • free agency – the process by which out-of-contract players can engage in contract discussions with other NBA teams;
  • rules on trading players; and
  • the aforementioned Anti-Drug Program.

The current CBA was entered into in 2017, and is due to run until the end of the 2023-24 season. The terms of the Anti-Drug Program are set out in Article XXXIII of the current CBA. The new CBA increased penalties for positive tests for performance-enhancing drugs from 20 games to 25 games for first violations. There was also an increase in suspension periods for second violations from 45 games to 55 games. A third positive test continues to result in the player’s expulsion from the league.

Section 9 of the Anti-Drug Program provides that players who have been found to have taken performance-enhancing drugs may have penalties reduced or rescinded through arbitration. Section 19 provides a defence if the player can present:

clear and convincing evidence that he bears no significant fault or negligence for the presence of the drugs in his test result.

This means the player must not have known or suspected, and could not have reasonably known or suspected, that he was taking, ingesting, applying or using the banned substance. Further, the player must establish how the substance entered his system. This is a high evidential bar to meet.

Nevertheless, Ayton is appealing the findings. Diuretics can be used to help the body remove evidence of other banned substances. Ayton’s follow-up tests revealed no traces of other banned substances. The NBPA is preparing to take the case to arbitration, invoking the section 19 ‘unintentional ingestion’ defence, to appeal the decision. Collins intends to appeal the test results on the same basis, claiming that the offending substance derived from a supplement that “unbeknownst to me, had been contaminated with an illegal component”.

An impartial arbitrator will now review the arguments raised by the players and sustain, reduce or rescind the suspensions.

Performance-enhancing drug suspensions are relatively rare in the NBA. ESPN analyst Bobby Marks described the recent spate of suspensions as “unprecedented”. It will be interesting to see how the arbitration proceedings unfold and whether the penalties are changed.

© Copyright 2019 Squire Patton Boggs (US) LLP

For more on the NBA and related news, see the National Law Review Entertainment, Art & Sports law page.

Third Thursdays with Ruthie: The Intersection of Religion and Labor Law [PODCAST]

In this episode of the Third Thursdays podcast, Ruthie Goodboe examines how religious discrimination and accommodation intersect with traditional labor law. She will cover religious accommodation under Title VII of the Civil Rights Act of 1964, best practices for handling requests for religious accommodation when an employee is governed by a collective bargaining agreement, and how Section 7 of the National Labor Relations Act comes into play with religious accommodation.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more labor law developments see the Labor & Employment law page on the National Law Review.

“OK, Boomer!”: Not Okay In the Office

As recently highlighted by the New York Times, a new phrase emblematic of the real or perceived “War Between the Generations” has gone viral: “OK, Boomer!”  The phrase, popularized on the Internet and, in particular, Twitter by Generation Z and Millennials, has been used to dismiss baby boomers’ thoughts and opinions, sometimes viewed by younger generations as paternalistic or just out of step.

And, the phrase isn’t just living in Twitter feeds and the comments sections of opinion pieces.  There is “OK, Boomer!” merchandise and, just last week, a 25 year-old member of the New Zealand Parliament used the phrase to dismiss a fellow lawmaker’s perceived heckling during a debate about climate change.

While many may find “OK, Boomer!” a harmless way to point out generational differences, the phrase’s popularity could lead to problems once it creeps into the workplace.  Age (over 40) is a protected category under both California law (i.e., the Fair Employment and Housing Act) and federal law (i.e., the Age Discrimination in Employment Act).  Whether the speaker is well-intentioned or not, dismissive attitudes about older workers could form the basis of claims for discrimination and/or harassment.  And, as one radio host recently opined, the phrase “OK, Boomer!” may be regarded by some as an outright slur.

Generation Z and Millennial employees understand that using derogatory or dismissive comments related to gender, race, religion, national origin, disability and sexual orientation are inappropriate.  Yet, for some reason, some may not have made the leap with regard to insidious/disparaging comments about a co-worker’s age.  Given the prevalence of age discrimination lawsuits, employers should take heed and consider reminding their workforce about the impropriety of this and other age-related phrases, and train their employees to leave the generation wars at the door.

© 2019 Proskauer Rose LLP.

For more on employment discrimination see the National Law Review Labor & Employment law page.

U.S. Women’s National Soccer Team Wins Class Certification in Equal Pay Fight

A federal court has ruled that the U.S. Women’s National Soccer Team’s (USWNT) equal pay claims under Title VII of the 1964 Civil Rights Act can move forward as a class action, as opposed to myriad individual cases.

As part of its decision, the court also allowed the USWNT’s Equal Pay Act (EPA) case to proceed as a collective action.

Factual background

Earlier this year, the USWNT players filed a complaint in federal court against their employer, the USSF. The lawsuit alleges that USSF violated the EPA and Title VII by, among other things, paying the women’s team less than the men’s team for doing equal work.

Equal Pay Act and Title VII Legal Frameworks To Prove Wage Discrimination

To win their EPA case, the USWNT must first prove a prima facie case under the EPA. The team can do so by showing:

  • the employer pays different wages to employees of the opposite sex;
  • the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and
  • the jobs are performed under similar working conditions

If the USWNT establishes a prima facie case, the burden shifts to the USSF to establish one of four affirmative defenses: (1) that the pay difference is due to a seniority system, (2) a merit system, (3) a system that measures quantity or quality of production, or (4) “any factor other than sex.”

If the USSF makes this showing, the USWNT can still win if it shows that the USSF’s justification for the pay disparity was a pretext.

Title VII also makes it illegal to discriminate based on sex in pay and benefits, which is why the USWNT is also suing USSF under this law. Title VII prohibits discrimination in compensation and other terms and conditions of employment, so it has a broader reach than the EPA (and also outlaws, among other things, discrimination based on race, religion, and other protected characteristics).

The USWNT Argues That, Despite Their Better Results, They Are Paid Less For Equal Work

The USWNT’s complaint contains evidence and statistics supporting their argument that the USSF has unlawfully paid them less than the men’s soccer team. For example, the complaint alleges:

The USWNT is the preeminent women’s soccer team in the world and has contributed to the finances and reputation of the USSF at least as much as the USMNT. The complaint lists three World Cup titles (which is now four titles), four Olympic gold medals, and asserts that the USSF revised its projected earnings for 2016 from a net loss of $429,929, to a net gain of $17.7 million, because of the successes of the USWNT, particularly at the 2015 World Cup.

The USSF pays the women’s team less than the men’s team, despite requiring players on both teams to perform the same job duties that require equal skill, effort and responsibilities performed under similar working conditions. The complaint states that the women’s team players spend more time practicing, playing, and promoting the USSF than the men’s team does; indeed, from 2015 to 2018, the USWNT played in nineteen more games than the USMNT.

In addition, the complaint asserts that from 2013 to 2016, the USSF paid USWNT players $15,000 for trying out and making the World Cup team. Yet the USSF paid USMNT players $55,000 for making the team.

Similarly, in 2014, the USSF paid the USMNT more than $5.3 million in bonuses after their World Cup loss in the Round of 16. While in 2015, the USSF paid the USWNT only $1,725,000 in bonuses after they won the World Cup.

Finally, the USWNT received less favorable training and travel conditions, as well as reduced marketing for their games. For example, in 2017, USSF chartered private planes for USMNT travel at least seventeen times, but zero times for the USWNT.

USSF’s Potential Defenses

To rebut these claims, the USSF might argue that its legitimate, non-discriminatory reason for paying USWNT players less than USMNT players is that the men’s team generates more revenue for USSF than the women’s team, which accounts for the difference in pay.  The USSF denies the allegations in the USWNT’s complaint.

According to a report, however, this may not be accurate. That is, between 2016 and 2018, USWNT games generated about $50.8 million, compared with $49.9 million for USMNT games.

Currently, player compensation is not directly linked to money generated by the team in ticket sales, brand deals, and other promotional activity. The USWNT’s complaint refers to 2016 negotiations with the USSF in which the USWNT’s union offered to enter a revenue-sharing model. Under this model, player compensation would increase in years in which the USSF derived more revenue from USWNT activities and decrease in years when it earned less from USWNT’s activities. USSF rejected the offer, according to the complaint.

© 2019 Zuckerman Law

ARTICLE BY Eric Bachman of Zuckerman Law.
For more employment and other litigation outcomes, see the National Law Review Litigation & Trial Practice law page.

Ohio District Court Delivers Win For Pizza Drivers

Following the guidance set forth in the U.S. Department of Labor (DOL)’s Field Operations Handbook, the U.S. District Court for the Southern District of Ohio recently ruled in favor of pizza delivery drivers and in the process confirmed the standard for reimbursement of vehicle expenses under the FLSA.

In Hatmaker, et al., v. PJ Ohio, LLC, et al., the court granted summary judgment in favor of pizza delivery drivers who incurred costs to “purchase, maintain and operate” their vehicles, and alleged that because they were not paid “their actual expenses or the IRS standard business mileage rate,” they were effectively paid less than minimum wage. According to the decision, the defendant employer operated 73 Papa John’s locations, and paid the plaintiff delivery drivers at or near the minimum wage. The parties filed cross-motions for summary judgment, and the court ruled in favor of the delivery driver employees.

The DOL’s anti-kickback regulation prohibits arrangements that “shift part of the Employer’s business expense to the employees . . . to the extent that it reduce[s] an employee’s wage below the statutory minimum.” For example, as the DOL has explained, if the employer requires that an employee provide his or her own equipment or tools, the FLSA is violated “in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid.” As the court explained, “[i]n the pizza delivery context, the cost associated with delivering food for an employer is a ‘kickback’ to the employer that must be fully reimbursed, lest a minimum wage violation be triggered.”

The DOL recognizes that tracking delivery employee expenses is a potentially cumbersome task. Enter the Field Operations Handbook (FOH), which affords employers the option of either tracking and reimbursing delivery drivers for their actual delivery expenses (such as “gasoline, oil and other fluids, vehicle parts, auto repair and maintenance, registration costs, licensing and taxes”) or simply reimbursing delivery drivers at the IRS standard business mileage rate.

The defendant employer in this case neither tracked and reimbursed drivers’ actual expenses nor reimbursed drivers at the IRS standard rate. Thus, the plaintiff delivery drivers argued that they received less than the FLSA minimum wage. The employer argued that the FOH is not entitled to any deference and that it is based on outdated IRS publications. Moreover, the employer asserted that the IRS daily rate does not pertain to reimbursements under the FLSA.

The court found that while the FOH was not entitled to Chevron deference, Skidmore deference was appropriate, as the FOH is “one of the ‘interpretations, opinions and explanatory Guidelines’ of the Department of Labor, to which a court ‘may properly resort for guidance’…”

Based on the DOL’s guidance, the court explained that employers may not “guess” or “approximate” employee expenses, because some employees would inevitably receive less than the minimum wage. Echoing the FOH, the court held that the “the proper measure of minimum wage compliance for pizza delivery drivers is to either (1) track and pay delivery drivers’ actual expenses or (2) pay the mileage reimbursement rate set by the Internal Revenue Service.”

So, the court concluded, employers may defeat summary judgment by showing “that they tracked and paid actual expenses and paid an amount equal to the minimum hourly wage rate plus actual expenses.”

The decision in Hatmaker provides a roadmap for employers of delivery drivers engaged in similar wage and hour litigation, which have become prevalent across the country. Employers of food delivery drivers or other employees who are required to provide their own tools or equipment may wish to review their practices and policies to ensure compliance with the FLSA.

© 2019 BARNES & THORNBURG LLP

More on employee rights under FLSA, see the National Law Review Employment & Labor law page.

OFCCP Issues Supplemental CSAL – Were You Selected For A New VEVRAA Focused Review?

On November 8, 2019, OFCCP released its Corporate Scheduling Announcement List (“CSAL”) Supplement.  The list identifies 500 establishments selected for the new VEVRAA focused review compliance evaluation.  In 2018, OFCCP announced that it would be conducting focused reviews during which it would target its analysis on contractors’ compliance with  Executive Order 11246 (the “EO”) (equal employment opportunity regardless of race, color, religion, sex, sexual orientation, gender identity, or national origin); Section 503 of the Rehabilitation Act (“Section 503”) (equal employment for individuals with disabilities), or the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) (equal employment for protected veterans).

OFCCP has already commenced Section 503 focused reviews, but this is the first time the agency has scheduled VEVRAA focused reviews.  In its November 8, 2019 announcement, OFCCP also shared that it has created a VEVRAA focused review webpage “[t]o help contractors prepare for the upcoming reviews.”  The agency touts the resource as providing “best practices, protected veteran resources, answers to frequently asked questions, and other compliance assistance resources.”

Contractors are advised to review the Supplemental CSAL (available online) to see if they have been selected for a VEVRAA Focused Review and, if so, review the current and proposed VEVRAA Focused Review scheduling letters to prepare for their upcoming compliance evaluation, and consult with counsel as necessary.

© 2019 Proskauer Rose LLP.

ARTICLE BY Guy Brenner of Proskauer Rose LLP.
For more OFCCP actions, see the National Law Review Government Contracts page.

Employer Concerns with Employee Substance Abuse and Drug Use: A Q&A with Caroline J. Berdzik of Goldberg Segalla

With headlines and staggering statistics extolling the impact of the opioid epidemic ripping through the United States, and marijuana (medical and recreational) legalized and decriminalized and a patchwork of state, federal and municipal laws across the country; employers dealing with employee substance abuse and drug use issues have a lot of things to consider. Caroline J. Berdzik, a partner with Goldberg Segalla and chair of the firm’s Labor and Employment and Health Care Groups,  focuses on counseling employers on human resources and employment matters, and was kind enough to share her thoughts on the thorny issues of employers navigating employee substance abuse and drug use.  Read on for more insight and ideas on  how employers should proceed when an employee demonstrates some indication of substance abuse, what the concerns are for employers, and some thoughts on how to move forward keeping in mind changing attitudes on addiction and the laws that may apply.

Can you outline some of the dangers employers face when employing an individual who is struggling with addiction?

Unfortunately, substance abuse addiction and its ramifications cannot avoid the workplace. There is an acknowledgment that this is not an issue that has social or economic boundaries, anyone from highly compensated executives to hourly employees may struggle with addiction. Addiction can take many forms including alcohol abuse, opioid dependency, or the use of other illegal or legally prescribed substances. Employers need to be concerned about legal issues when dealing with an employee who is struggling with addiction. It may be difficult to confirm that an employee has an addiction as they may try to hide it and depending on the circumstances, there may be limits of how far an employer can pry into these concerns.

Once the problem is confirmed, some consideration needs to be given as to whether the employee can continue to do their job while working through addiction. If they are unable to perform their job responsibilities, there are options or reasonable accommodations available to the employee or employer (i.e., leave of absence for treatment). Other components to consider include the availability of drug and alcohol testing permitted under the law in their specific jurisdiction; whether the employee’s conduct has violated any company policies; and if the behaviors associated with the employee’s addiction is negatively impacting the quality of their work and interactions with co-workers, supervisors, clients, and others outside the workplace.

What are some of the issues employers must consider when discussing an employee’s addiction problems with an employee? What are the concerns, especially since addiction can be difficult to identify? 

Employers need to be very careful in this regard. Generally, potential addiction is brought to an employer’s attention through observation or by reports from other employees, supervisors, clients, or even customers. If alcohol is the issue, it may be difficult to detect when someone is under the influence, particularly if the consumption is during non-working hours and if the employee is merely coming to work hungover―as opposed to being intoxicated on the job. If the suspected addiction involves drugs (e.g., whether legal or illegal), there are states that don’t allow for reasonable suspicion testing and some states that make it virtually impossible to test at all. Additionally―depending on the nature of the drug―it may also not show up in the drug test depending on when the test is done.

Many times, this is a difficult conversation to have with an employee since they will most likely deny having any issue because they don’t want to jeopardize their income or employment prospects. Employers need to be careful not to potentially run afoul of the Americans with Disabilities Act (ADA) and other state anti-discrimination laws when discussing a suspected substance abuse problem. Merely perceiving the employee as having a disability can open the employer up to legal risk. Therefore, it is critical to proceed with caution and consult internally or externally with legal counsel and human resources on how to best handle the situation.

How does the legality of the substance the employee is addicted to impact the employer’s actions?  For example, an employee addicted to legal opioid painkillers vs. an employee who is addicted to cocaine or other illegal substances?

The laws are greatly evolving in this area, particularly with respect to cannabis. More and more states have legalized medical marijuana and recreational marijuana. With respect to alcohol, it’s legal to drink alcohol as long as the individual is of age; however, alcohol abuse can cause just as many problems as an employee struggling with a substance abuse problem.

While it may seem easier to take certain actions when managing employees with addictions to other substances (e.g., opioids and cocaine), there are still considerations that come into play. For example, employers in some states cannot take actions against employees based on what activities that they do during off-duty hours.

Irrespective of the legality of the substance, the employer needs to focus on whether the employee is impaired at work or at work functions (e.g., on a business trip, attending a conference, meeting with clients, etc.). They also need to consider the impact of those behaviors on the individual, the company, and anyone else involved. Employers also need to be cognizant of the laws in their jurisdictions and the policies the company may have regarding the use of alcohol and drugs in the workplace. If someone is a current user of an illegal substance, there is typically no protection afforded to them under the ADA or similar anti-discrimination laws. However, if an employee can tie their addiction to an underlying mental health disorder, it becomes murkier. For employees who are recovering drug addicts or alcoholics, there is likely more protection afforded under anti-discrimination laws.

The key thing for employers to remember is to not make any knee-jerk decisions when evaluating these issues. Employers should take time to fully analyze the circumstances before taking any action and determine what legal obligations, if any, it may have to try to accommodate employees.

What legal requirements come into play when human resources intervene with an employee struggling with addiction?  For example, can this be a situation where the ADA applies?

The ADA is typically something that would come into play when dealing with an employee struggling with addiction. Human resources should consult with legal counsel while navigating through this type of issue. There are a myriad of laws that are intertwined that could potentially be relevant including the federal Family Medical Leave Act, as well as other state or local counterparts. In many circumstances, the employer may need to provide a reasonable accommodation to assist an employee struggling with addiction. Best practices may dictate this type of documented discussion with the impacted employee, even without a legal requirement to do so.

Attitudes toward addiction are changing with addiction increasingly being seen as a disease that should be treated without judgment–how does this shift change an employer’s reaction to employees with addiction issues?

As these issues become more prevalent, including the revelation that they impact individuals at higher level positions at companies, employers are increasingly willing to work with employees to get them the help they need. I have seen an uptick in counseling calls where employers are genuinely concerned about their employees’ well-being and want to find ways to assist them. However, I have seen situations where employers have gone above and beyond to work with a struggling employee and the employee failed to help themselves with the assistance being offered.

Rates of prescription opioid abuse are skyrocketing. How is this worrisome trend affecting employers, and are there any proactive steps employers can take?

Opioid use is a very serious problem impacting the workplace. Employers are well advised to have employee assistance programs (EAPs) in place. They should also have open-door policies to encourage employees to come to human resources to seek help for their addiction.

Many thanks to Caroline J. Berdzik of Goldberg Segalla for sharing her thoughts and insights on this complicated, yet increasingly relevant employment law issue.

Copyright ©2019 National Law Forum, LLC

More employment law issues on the National Law Review Labor & Employment page.