Dealing with the Opioid Threat in the Construction Industry

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Nexsen Pruet, PLLC

Opioids pose a substantial threat to the construction industry. According to the National Institute of Occupational Safety and Health (NIOSH), “Opioids have commonly been prescribed to construction workers to treat pain caused by these occupational injuries. Workers in the industry also have higher rates of opioid overdose death compared with other groups.”

The hard physical work undertaken in construction jobs can lead to injuries for which doctors may prescribe strong prescription drugs. Workers can become addicted to these substances and related street drugs like heroin. Additionally, construction workers are more likely to use drugs than workers in other professions, Science Daily reported, based on a study published in the journal Drug and Alcohol Dependence. According to the study’s lead author, New York University Associate Professor of Epidemiology Danielle Ompad, drug testing cannot distinguish between recreational and medicinal use of opioids (or marijuana). Ompad suggested that “prevention and harm reduction programming is needed to prevent drug-related risks and mortality” in construction workers.

recent article in the Wall Street Journal highlighted connections between the increase in opioid use, deaths from overdoses during the COVID-19 pandemic, and the shortage of manual labor already facing the construction industry. Even before the pandemic, deaths due to drug overdoses were on the rise across the country. South Carolina’s governor declared the state’s opioid crisis a public health emergency in 2017 and established a team that developed a response plan. North Carolina also has an action plan addressing its opioid crisis.

As construction employers work to keep their job sites safe and productive, they should keep in mind some key points regarding employee drug use:

  • Recovering addicts (and employees properly using prescription drugs) may be protected under the Americans with Disabilities Act (although illegal drug use is never protected).
  • Leave to seek treatment for substance abuse is ordinarily covered by the Family and Medical Leave Act.
  • The Occupational Safety and Health Administration has focused in recent years on post-accident drug testing. The agency encourages testing when there is reasonable suspicion that drug use was a factor in a workplace accident or injury when post-accident drug testing is part of the established safety culture of a company. The testing cannot be used to penalize an employee for reporting injuries or illnesses.
  • North and South Carolina permit employers to screen for drugs and alcohol but impose technical requirements on sample collection and testing methods.

Employers should already have clear policies regarding drug use and testing. Well-drafted policies can be helpful in dealing with workers’ compensation and unemployment benefits claims. In addition to legal compliance, construction employers benefit from establishing employee assistance programs or otherwise determining how to refer employees for help with substance abuse problems. Employees who seek treatment for addiction may be able to remain in the workforce without posing a threat to themselves or others with appropriate monitoring and support. NIOSH points construction employers to resources provided by the Center for Construction Research and Training (CPWR) to help combat opioid use in the workplace. CPWR also offers PDF alerts that employers can post to increase employee awareness of issues around opioids.

In response to the opioid crisis, which has been exacerbated by the current pandemic, employers should ensure that their supervisors and managers are trained to recognize signs of impairment and addiction; are prepared to take effective action in a crisis; and know-how to properly document ongoing performance issues, misconduct, attendance problems, and other concerns that could be related to substance abuse. Each substance abuse issue is complex and nuanced, and employers should seek legal counsel when navigating substance abuse issues.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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