Drugs at work: Evolving employment practices liability for employers

By Higginbotham on February 25 , 2016

Drugs at work

Drug use in the workplace is nothing new to employers. It’s a problem that touches virtually every industry, and employers have long been aware of the possible consequences, including:

  • Lower productivity
  • More employee accidents
  • More medical and workers' comp claims
  • Increased absenteeism
  • More employee theft
  • Workplace drug dealing

But developments in recent years have been changing the game – rising opioid drug use, the relaxation of marijuana laws, and the explosion in employment practices liability lawsuits – making drug use in the workplace an evolving risk.

  • The opioid epidemic. According to the 2014 Drug Trend Report by the pharmacy benefits management firm Express Script, an estimated 576,000 Americans spent more than the median household annual income on prescription medications in 2014. Overall spending on prescription drugs in the S. rose 13.1 percent in 2014. And there were 28,647 opioid-related deaths in the U.S. in 2014, a 9 percent increase over 2013. It’s a public health crisis, and prescription drug use among employees can present many of the same issues as illegal drug use.
  • Changing marijuana laws. Marijuana is still classified as an illegal drug under Schedule I of the federal Controlled Substance Act, but times are changing. Twenty-three states and the District of Columbia have legalized the use and possession of marijuana in some form or another, and four states have legalized it for recreational use. New laws could have ramifications for employers when it comes to drug testing, workplace drug policies, and employment practices liability exposures, especially if efforts currently underway to have marijuana removed from the federal Controlled Substance Act are eventually successful.
  • Increase in employment practices lawsuits. Lawsuits for improper termination, hostile work environments, sexual harassment, and other employment practices claims have been on the rise in recent years – and they’re getting more complex and costly. Workplace drug testing is one area that presents liability risks for business owners, and with changing laws, things could get even stickier.

The drug testing dilemma

Workplace drug testing has long been a tool to help employers establish and maintain a culture of safety. But is it the best solution, especially in light of the changing cultural and legal landscape? While proponents say it works, some research suggests that it’s not the best option, and could even be doing more harm than good. Regardless of which side you’re on, legal battles over employers’ ability to terminate an employee based on the legal use of marijuana are on the rise in places where marijuana use has been legalized.

Is your business prepared for these evolving laws and employment practices liability exposures?

Like any business owner, you want to create a safe, productive, drug-free workplace. And you’ve probably either considered or put in place a company-wide anti-drug abuse policy, comprehensive employee drug abuse education and drug awareness programs, drug testing programs, employee assistance (EAP) and rehabilitation programs, and other measures.

But these days, you shouldn’t go it alone.

First, find an attorney or professional services firm that is well versed in employment practices liability. Those experienced with EPL claims can help you audit your current employment practices, keep you compliant with new laws and regulations and advise you on the best practices for your business and for these changing times. Some EPL insurance carriers also provide free hotlines for answers to their policyholders' questions.

Second, talk to the business insurance experts at Higginbotham Insurance about why EPL insurance should be an essential part of your business insurance coverage. We can provide invaluable insight into your labor risk management strategy and your vulnerabilities, and make sure your business is financially protected against these evolving risks.

Related: Avoid employment practices liability with legal background checks


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