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New Rules Aim for Hospital, Insurer Transparency

The Trump administration on Nov. 15 announced two rules that would require more transparency in hospital pricing and health insurance out-of-pocket costs for enrollees.

The final rule on hospital pricing will require hospitals to publish their standard fees both on-demand and online starting Jan. 1, 2021, as well as the rates they negotiate with insurers. The administration also proposed rules that would require health insurers to provide their enrollees instant, online access to an estimate of their out-of-pocket costs for various services. 

The latter are just proposed rules and will have to go through a comment period before final rules can be issued. 

The two sets of rules are part of the Trump administration’s efforts to bring more transparency into the health care and insurance industry. They are in response to more and more consumers’ stories of serious financial strife after receiving surprise bills from hospitals and other providers, particularly if they had to go to a non-network physician or hospital.

Both rules could benefit health plan enrollees by giving them more information on hospital services, particularly if they are in high-deductible plans and can shop around for a future procedure, such as a mammogram or knee replacement surgery.

Hospital pricing transparency

In the original proposed regulations, the administration had proposed the effective date of the hospital price transparency rule as Jan. 1, 2020, but health providers said they would need more time to ramp up.

The new rules, effective Jan. 1, 2021, will require hospitals to publish in a consumer-friendly manner their standard charges price list of at least 300 “shoppable services,” meaning services that can be scheduled in advance, such as a CAT scan or hip replacement surgery.

The list must include 70 services or procedures that are preselected by the Centers for Medicare and Medicaid Services. Hospitals will have to disclose what they’d be willing to accept if the patient pays cash. The information will be updated every year.

Hospitals will be required to publish their charges in a format that can be read online. This rule could pave the way for apps that patients can use to compare services between hospital systems.

Under the rule, hospitals will have to disclose the rates they negotiate with third party payers.

The new rules face some uncertainty, however. The health care trade press has reported that a number of trade groups such as the American Hospital Association and the Federation of American Hospitals, among others, announced in a joint statement that they would sue the government, alleging that the new rules exceed the bounds of the CMS’s authority.

Out-of-pocket transparency

The proposed rule would require insurers to provide their health plan enrollees with instant online access to estimates of their out-of-pocket costs.

The regulations would require health insurers to create online tools their policyholders can use to get a real-time personalized estimate of their out-of-pocket costs for all covered health care services and products, such as:

  • Hospitalization
  • Doctor visits
  • Lab tests
  • Surgeries
  • Pharmaceuticals.

They would also be required to disclose on a public website negotiated rates for their in-network providers, as well as the maximum amounts they would pay to an out-of-network doctor or hospital. 

The proposed regs would also let insurers share cost savings with their enrollees if the individuals shop around for services that cost less than at other providers. This would give enrollees an incentive to shop around.

This proposed rule is also certain to face push-back from the insurance industry.

These out-of-pocket transparency regs are just proposals, so they have to go through the standard rule-making procedure of soliciting public comments before eventually issuing the final rules.


The Holidays Have Their Own Workplace Perils

All year long you have been reminding your employees to “work safely … don’t take short cuts … prevent accidents.”

To do this they have to keep their minds on their work, but this time of the year as the holidays near, their minds might be everywhere else but on work.

They may be thinking “what to buy for everyone for Christmas – I hate shopping!” and “how will I pay for Christmas?” Meanwhile, relatives coming to stay add yet more distracting thoughts.

For some employees, the holiday period is a wonderful time, and for others it is dreadful, but it is stressful for most anyone. Normal routines and schedules are disrupted, and there is a lot of rushing around the town to crowded and chaotic stores and malls.

Be aware that accidents may be more likely to happen at this time of the year at the workplace, on the road or at home. Employees tend to take extra physical risks ― such as when hanging lights and lugging trees around.

And when roads and freeways are jammed, auto accidents increase.

In-office safety

When planning decorations for the office, it is important to keep holiday safety in mind.

Decorating the office helps workers enjoy the spirit of the season together, but remember that proper safety precautions should be observed at all times:

  • Be mindful of potential fire hazards when selecting holiday decorations and where you place them.
  • Be careful of stapling holiday lights, do not add too many strings of lights and make sure illuminated items are turned off.
  • Verify that all fire extinguishers are in place and fully charged and accessible.
  • Do not block exits, hang decorations on fire extinguishers, fire alarms or fire hose boxes, or obstruct the view of exit signs.
  • Do not hang decorations from sprinkler heads or electrical panels.
  • Without proper planning, holiday decorations can create tripping hazards. Extension cords should not be run through traffic areas where they pose trip hazards and, if you have to use an extension cord, use the proper one.
  • Avoid placing trees, freestanding decorations and presents in traffic areas.

Holiday party

The holidays bring office parties and, if alcohol is being served, keep in mind the liability involved.

Provide plenty of alternatives to alcohol, such as soft drinks, coffee, tea, water and cocoa. Consider non-alcoholic beers and virgin drinks at the bar.

Also, so your staff is safe on the way home, stop serving alcohol a few hours before the party ends.

It’s essential to make transportation arrangements for employees who should not drive – whether the party is held at the office, restaurant, your home or any other location.

The takeaway

If you keep in mind that the holidays put extra pressure on everyone, it may help you to keep your workplace free of accidents.

By following a few simple safety tips, it will be easy to enjoy the holiday and the events at work without dealing with injuries or damage to property.

When planning for the holidays, incorporate safety precautions into the planning process.

Need Gift Ideas for Your Christmas Party?

Give a gift of safety that just might save a life. Here are some ideas of safety items we don’t think about until we need them and/or it’s too late:

  • A smoke detector and batteries.
  • A quality fire extinguisher.
  • A flashlight and batteries, or light sticks.
  • A first aid kit.
  • An automobile safety kit including jumper cables, flares, fix-a-flat and reflectors.
  • A carbon monoxide detector.
  • An emergency kit flashlight, energy bars, batteries and first aid kit ― packed in a small travel bag.
  • A radio that runs by cranking rather than batteries.

New Overtime Exemption Regs Take Effect Jan. 1, 2020

New federal overtime regulations have finally been introduced for non-exempt workers after years of wrangling over the issue.

Under the new rule, employers will be required to pay overtime to certain salaried workers who make less than to $684 per week – or $35,568 per year – up from the current threshold of $455, or $23,660 in annual salary.

The new regulations are a midway point from Obama administration rules that would have seen the salary cap increased to $47,476, a move that was blocked by a court after protests from the employer community in December 2016.

Because the Trump administration took over after that, it decided not to pursue an appeal of the judge’s orders and instead started working on replacement regulations that appeased the employer community, which had protested the doubling of the cap as too costly for businesses.

The Fair Labor Standards Act requires that most employees in the United States be paid at least the federal minimum wage for all hours worked, and overtime pay at not less than time and one-half the regular rate for all hours worked over 40 in a workweek. However, the law includes exemptions for certain workers, as long as they satisfy a certain salary threshold.

Under the final rule issued by the Department of Labor, executive, administrative, professional, computer or outside sales employees who make more than $684 a week are exempt from the FLSA’s minimum wage and overtime pay requirements. The new regulations also allow employers to count a portion of certain bonuses (and commissions) towards meeting the salary level.

The new rule takes effect Jan. 1, 2010.

Here are the tests that must be satisfied to categorize workers as exempt if they make more than the new threshold (remember, merely giving someone a job title without these responsibilities does not make them exempt):

Executive employees

  • Managing the enterprise, or managing a department or subdivision of the enterprise;
  • Directing the work of at least two or more other full-time employees or their equivalent; and
  • Authority to hire or fire other employees, or have significant input in hiring, firing and promotions.

Administrative employees

  • Office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
  • Exercise of discretion and independent judgment with respect to matters of significance.

Professional employees

  • Work requiring advanced knowledge, that is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be acquired by a prolonged course of specialized intellectual instruction.

Computer employees

This includes computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field. To be categorized as exempt if making more than the new threshold, workers must be involved in:

  • Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
  • Design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
  • Design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  • A combination of the above.

Outside sales employees

  • Making sales or obtaining orders or contracts; and
  • Engaged away from the employer’s place(s) of business.

Highly compensated employees

The overtime threshold for “highly compensated” employees is also rising – to $107,432 per year, from the current $100,000. This means that employees who are not considered exempt as in the above occupations, and who earn less $107,432 starting next year, will be eligible for overtime if they work more than 40 hours a week.

Get current now

Here is a checklist of action items that you should address immediately:

  • Check whether your salaried employees satisfy the duties and salaries components of the FLSA white-collar exemptions (or your state law).
  • Identify all of the positions that will require reclassification under the new rule, and decide whether it is worth it to increase someone’s salary.
  • Analyze the financial impact of reclassifying employees as nonexempt.
  • Consider reassigning certain tasks to reduce the effects of the rule.
  • Make plans to conduct reviews regularly – like every three years for federal law compliance, or more frequently in California ahead of minimum wage changes.

Large PBMs Balk at Push to Reduce Drug Prices

In a move that exemplifies the potential conflict of interest that some large pharmacy benefit managers have, the nation’s largest PBM earlier this year said it would demand that rebates remain unchanged when drug makers roll out new price cuts. Drug makers earlier in the year said they would start reducing prices as well as the rebates they pay PBMs to appease lawmakers and the Trump administration, saying it would reduce the cost of medicine for patients. But not long after the announcement, the nation’s largest PBM, United Healthcare, fired off a letter to drug companies telling them that if they planned to reduce prices and rebates they would have to give seven quarters of notice (that’s 21 months if you’re counting) when they intend to lower prices. The letter, which was confirmed in news reports in the health care trade press, highlights what many critics say is an inherent conflict of interest among some of the large PBMs operating in the country.

Some background

When PBMs first came on the market, the services they offered were processing pharmacy claims and negotiating discounts on medications for the health insurance companies with which they contracted. Later though, they found a new way to make money: rebates. They would approach two manufacturers that made similar versions of a drug and play them off against each other to elicit the largest rebate they could. Whichever one offered the larger rebate would have their pharmaceutical placed on the drug plan’s formulary. The problem is that these large PBMs do not pass on the full rebate to their clients, like health insurance companies and health plan enrollees. Instead, they keep most of the rebate for themselves. As a result, PBMs with this business model are not motivated to include the lowest-priced drug on their formulary, but rather the one for which they can receive the largest rebate check.

The latest

United Healthcare sent out the letter to drug makers after pharmaceutical manufacturer Sanofi S.A. said it would cut the price of its cholesterol-lowering drug Praluent by 60%. It did so after its competitor Amgen Inc. reduced the price of its cholesterol drug Repatha by the same amount. United Healthcare’s demand that drug companies give 21 months’ notice when they plan to reduce prices has caught many drug makers off guard, since many of them have been looking to cut prices as pressure mounts on the industry from Washington. The dominance of United Healthcare’s PBM OptumRX and its competitor Express Scripts means that group health plan enrollees are often left at their mercy, as many large health insurers have contracts with them. If a drug company does not give the rebate that a large PBM demands, it could lose access to patients – and patients lose access to that drug. The only way to play the game is to offer a larger rebate and increase prices, which in turn increases the prices that patients have to pay. Fortunately, there are a number of smaller PBMs in the marketplace that have different business models that take payers’ needs into consideration and aim to reduce the out-of-pocket costs for patients. They contract with employers and insurers directly to make this happen.

New Booklet Helps Employers Set Up Safe Driving Programs

OSHA has published a set of guidelines to help employers reduce accidents among their driving employees.

The document is not a set of new regulations or a new standard. It is only advisory ― the federal agency describes it as “informational in content” ― and is intended to assist employers in providing a safe and healthful workplace.”

Nonetheless, the guidelines are an excellent way to establish a system that can reduce the likelihood of crashes involving your driving workers.

OSHA recommends implementing a safe driving program that includes the following:

Management commitment and employee involvement

Senior management can provide leadership, set policies and allocate resources (staff and budget) to create a safety culture. Actively encourage employee participation and involvement at all levels of the organization to help the effort to succeed. Involve workers in the planning phase of the policy.

Written policies

Create a clear, comprehensive and enforceable set of traffic safety policies and communicate them to all employees. They can cover such things as:

  • A zero-tolerance policy for using smartphones while driving and only using hands-free technology when talking on the phone.
  • A zero-tolerance policy of driving under the influence of alcohol or illegal drugs.
  • Requiring all driving staff to wear seat belts at all times.

These policies should be posted throughout the workplace, distributed to staff and discussed at company meetings. Offer incentives for sticking to the rules, and set consequences for disregarding them.

Driver agreements

Establish a contract with all employees who drive for work purposes, whether they drive assigned company vehicles or use their personal vehicles. By signing an agreement, the employee acknowledges awareness and understanding of the organization’s traffic safety policies, procedures and expectations regarding driver performance, vehicle maintenance and reporting of moving violations.

Check driving records

Check the driving records of all employees who drive for work purposes. Screen out drivers who have poor records. Review their moving violation records periodically to ensure that the driver maintains a good driving record. Clearly define the number of violations an employee/driver can have before losing the privilege of driving for work.

Crash reporting

Establish and enforce a crash reporting and investigation process. Require employees to report all accidents to their supervisor as soon as feasible after the incident. Set policies for what driving employees should do after an accident. Also, investigate all crashes and try to identify their root causes, so you can possibly help workers avoid making the same mistakes in the future.

Vehicle maintenance and inspection

Selecting, properly maintaining and routinely inspecting company vehicles is an important part of preventing crashes and related losses.

Review the safety features of all vehicles to be considered for use. Conduct routine preventative maintenance on vehicles as per manufacturer’s recommendations. Also check safety-related equipment and brakes regularly.

Disciplinary action system

Set rules for dealing with employees who are cited for a moving violation or are involved in a preventable crash while driving on the job. Options include:

  • Assigning points for moving violations.
  • Progressive discipline if a driver begins to develop a pattern of repeated traffic violations and/or preventable crashes.
  • The system should describe what specific actions will be taken if a driver accumulates a certain number of violations or preventable crashes in any predefined period.

Reward/incentive program

Develop and implement a driver reward/incentive program that includes recognition, monetary rewards, special privileges or the use of incentives to motivate the achievement of a predetermined goal or to increase participation in a program or event.

Driver training and communication

Provide continuous driver safety training and communication. Even experienced drivers benefit from periodic training and reminders of safe driving practices and skills. It is easy to become complacent and not think about the consequences of our driving habits.


Your Last-Minute Open Enrollment Checklist

By now you should be prepared and ready to go for your 2020 employee benefits open enrollment. You should have all your plan documents and have prepared or held presentations for your staff to explain the benefits package and any major changes to the plans that you offer. 

Employees should be familiar with how to use the enrollment portal and who they should talk to if they have questions. 

To be on the safe side, there are a few things you should do to make sure you maximize enrollment, that your employees have the correct materials and that you are in compliance with the law. 

Take an active role — Most of the policy selection is done online, but that doesn’t mean you can’t support your employees and let them know you are there in case they have any questions or are confused about any aspect of the benefits package. 

You should want all of your employees to choose the package that best fits their individual needs. To ensure they make the best possible choices and have a successful experience, motivate them to take an active role in their education by encouraging questions and showing them where they can find answers in the online enrollment platform. 

Last-minute blasts — You’ve probably sent a few e-mail reminders to your staff, but most certainly some of them still missed those communications. Make sure you send a few extra blasts at different times of the week, like Tuesday at 10 a.m. and another on Thursday at 2 p.m. 

You should also have all of your employees’ mobile phone numbers, and sending them reminder text messages is a sure-fire way to get in front of the ones who may not be as diligent about monitoring their e-mail. 

Double-check your plan materials — Do a final review of your plan documents for any necessary updates regarding member eligibility, plan benefits, new vendors and name changes to ensure that the current state of your benefits offerings is complete and accurate. 

Also, do a final review of your summary of benefits and coverage (SBC) and your summary plan description (SPD) to make sure they reflect any changes from the prior year. This is crucial as both documents are required under the law. 

The SPD may include the elements necessary to meet the requirements of the SBC, but it also needs to be a separate document that can be handed out with respect to each coverage option made available to the participants. 

To account for the annual open enrollment window, double-check your open enrollment schedule, deadlines, documents and forms, coverage options and changes, phone numbers, and website and mobile information for contacting resources, statement of current coverage, and plan-specific summaries and rates. 

Identify staff that didn’t enroll last year — To make sure you maximize participation and that nobody misses out, run a list of all your staff who didn’t sign up for benefits last year so you can approach them individually and convey the importance of securing health coverage. 

While you’re at it, make sure that all of your new hires in the past year have also signed up for coverage and that you didn’t miss them when sending out reminders about open enrollment. 

Check compliance with ACA — If you are an “applicable large employer” under the Affordable Care Act, meaning that you have more than 50 full-time or full-time equivalent employees, you are obligated under the law to provide health coverage to your staff that is “affordable” and covers 10 essential benefits. 

There is a figure for what is considered affordable, which changes every year. For your plan to be considered ACA-compliant, it must not cost an employee more than 9.78% of their household income.?? 

ACA refresher — The ACA remains as controversial and misunderstood as ever and most people only know what they have heard about it from their favorite news outlet, which can result in a skewed, and often incorrect understanding of the law. 

Also, there have been a number of changes to the law during the last few years, the biggest of which is the elimination of the penalties associated with individuals not securing health insurance as required by the individual mandate portion of the law. 

Give your staff a last-minute refresher to help them understand how the ACA affects their health insurance — and what the employer’s and their obligations are under the law. 


Lockout/Tagout Training Essential in Any Shop with Equipment

A printing shop employee notices a piece of cardboard jammed inside a press. The first instinct is to remove it and continue the work, so he grabs the cardboard and tries to pull it out, while the press is running.

Tragically, in this real-life example, the employee’s arm got caught up in the machinery, resulting in a gruesome injury that resulted in him losing part of the limb.

By following proper lockout/tagout procedures, this employee would not have reached for the cardboard without first powering down the machinery. Unfortunately though, he had never been trained in such procedures.

What your employees need to know

Under lockout/tagout regulations, only authorized employees who have the appropriate level of knowledge and training can perform maintenance on equipment. Those that operate the equipment may not perform maintenance but are allowed to shut the machine down and place a tag on it to warn co-workers that the equipment should not be used.

Tagging the equipment is an important step because if co-workers don’t know why a conveyor belt or other piece of heavy machinery was shut down, there’s a risk one of them might start it back up not knowing there’s a problem or that someone’s performing maintenance.

What your employees need to do

Your employees serve as extra sets of eyes and ears at the workplace. They can listen for strange sounds that might indicate a machine is not working properly. They can also inspect the equipment throughout the day looking for frayed cords, jams or any other physical signs that could lead to trouble.

When a malfunction occurs or something is jammed inside a machine, the first step should be to shut it down and disconnect the power source, if possible. Next, the worker should tag the machine (tagout) and notify their supervisor, who contacts an authorized repair person.

A padlock or other locking device (lockout) is then used to further secure the machine and prevent anyone from starting it up without authorization. After that, repairs can commence.

What to tackle at your safety meetings

To prevent serious injuries, your team should be well-versed in lockout/tagout procedures, which they should learn in safety meetings. Here are some tips:

  • Make sure your team knows who is authorized to perform repairs. No matter how easy a repair or fix seems, it’s not worth the risk of injury like the one suffered in the printing machine mentioned above.
  • Train them on how to shut down equipment and disconnect the power source.
  • Train them in where the tags can be found to place on malfunctioning equipment.
  • Train them in the protocol for notifying a supervisor of any jam or malfunction.

Also, make sure to ask your workers the following to ensure they understand:

  • Do you have any questions about lockout/tagout procedures in this shop?
  • Are there times when you aren’t sure when to utilize lockout/tagout procedures?
  • How can we make sure that everyone is following our lockout/tagout procedures?

Many Workers Struggle with Medical Bills, Despite Having Insurance

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A new survey has found that many American workers are struggling with medical bills even though they have employer-sponsored health plans.

The good news from the survey was that 81% of respondents said they had health insurance, which meant they were 19% more financially fit than people without insurance. They were also happier.

The survey found that:

  • One in 10 employees who have insurance and pay part of the premiums, also have annual out-of-pocket medical bills of more than $10,000.
  • 33% of insured employees carry medical debts that they are trying pay down.
  • Insured employees that carry medical debt are 42% less financially fit than those who do not have such debt.

Carrying debts related to medical care also affects employees’ health. The survey found that workers with money problems are:

  • Three times more likely to suffer from anxiety and panic attacks.
  • Eight times more likely to have sleep problems.
  • Four times more likely to suffer from depression and have suicidal thoughts.

Stress from medical debts can also affect worker productivity. Of employees with medical debt problems:

  • 24% have troubled relationships with co-workers.
  • 22% cannot finish their daily tasks.

Lost productivity from these two issues costs businesses up to 14% of payroll expenses, the survey found.

What can you do

Given that health care costs show no signs of abating, what can you do for your low-wage employees and also ensure that your own health insurance premiums don’t spiral out of control? Here are some options:

Vary premium level – If you have a mix of highly paid staff and lower-wage workers, you can create a tiered system where the latter receive greater premium contributions from you than do the former. About a quarter of large employers vary employee health insurance premiums. This is something that’s not feasible for all businesses, particularly if money is tight.

Offer plans with generous benefits – You can offer a slate of plans, from ones with larger copays and deductibles to those with low or no out-of-pocket costs for those employees willing to pay more in premium. This way, your low-wage workers have a choice of health plans which include lower deductibles and lower variability in potential out-of-pocket liability.

Offer skinny plans – Skinny plans still cover the 10 benefits required by the Affordable Care Act, but they typically have a narrow network of providers in exchange for low out-of-pocket costs for the enrollee. While this option is good for your younger and healthier worker, it is often a non-starter for those who have existing health issues.

Carefully review incentives and subsidies – Employers should design wellness incentives that do not penalize low-wage workers, who are more likely to smoke, (many employers impose a tobacco surcharge averaging $600 a year). Employers should couple tobacco surcharges with tobacco-cessation programs, and waive surcharges for employees who are trying to quit.

Offer plans with modern attributes – Telemedicine services can reduce health care costs, as they reduce the worker’s need to take time off for an appointment and also lower the cost of delivery of care.

Push for lower prices and costs – You should coordinate with us, so we can work with your health plans and providers to reduce costs.


Trump Administration Decides Not to End PBM Rebates

The Trump administration has decided not to pursue a policy that would have put an end to rebates paid to pharmacy benefit managers, which could put the focus again on how drug companies set their prices.

The proposal would have barred drug companies from paying rebates to PBMs that participate in Medicare and other government programs. According to the administration, the proposed rules were shelved because Congress had taken up the issue to control drug costs.

The spotlight has been harsh on some of the country’s largest PBMs, which have been accused of pocketing a substantial portion of the rebates for themselves while passing on only a sliver of the rebates to the insurance companies that hire them and the health plan enrollees that pay out of pocket for the drugs.

Rebates had become a popular target of criticism in Washington after drug companies lobbied aggressively to cast them as the reason for high prices. PBMs negotiate drug discounts in the form of rebates, often keeping some of that money for themselves.

However, many pundits say that the rebate system put in place by large, national PBMs incentivizes drug companies to keep list prices high, which in turn defeats the purpose of the PBMs – that is, to reduce the out-of-pocket costs that health plan enrollees pay for their prescription drugs.

Like insurers and PBMs, some of which have sought to undermine the practice with accumulator adjustment programs, the Trump administration believes such coupons may be driving up health care spending by getting patients to opt for higher-priced name-brand drugs over generics.

The Centers for Medicare & Medicaid Services proposal unveiled in January would have essentially blocked drug manufacturer rebates from going to PBMs and health plans that serve Medicare and Medicaid patients, starting next year.

Now that the push to eliminate rebates has come to end, the focus looks like it’s shifting to how drug companies price their products. We will keep you posted if any legislation surfaces in this area.


The Difficulty of Dealing with Workers with Substance Abuse Problems

With the opioid epidemic continuing to sweep the nation, more and more workers are battling addiction than ever before.

But if you as an employer suspect or know one of your staff has a substance abuse problem, you need to be careful about how you approach them and try to deal with the issue.

Even if many employees can keep their addictions under wraps in the workplace, not all of them can. According to a survey conducted by the website drugabuse.com, which offers educational content and recovery resources to people dealing with addiction:

  • 23% of workers surveyed said they had used drugs or alcohol on the job.
  • 60% said they had used alcohol on the job work (not including office parties or functions).
  • 23% said they’d smoked marijuana on the job.

On top of that, 75% of U.S. employers say they’ve been affected in some way by an employee’s substance abuse. That can include:

  • Employee theft to support the habit.
  • Mistakes that cost the company money and lost business.
  • Workplace accidents.
  • Accidents that injure third parties.
  • Reduced productivity because of presenteeism.

While you can have policies in place that bar employees from working under the influence – under threat of firing – it’s a trickier matter if one of them comes to you to tell you they have a problem.

The Americans with Disabilities Act protects workers who:

  • Have successfully completed a rehab program and have stopped taking the drug that caused them to enter the substance abuse program,
  • Who are currently in a rehab program, or
  • Who have been wrongly accused of having a substance abuse problem.

It’s also a challenge for employers to know the difference between an employee who may have been taking one Vicodin every day for years for pain but continues to do a great job, or someone who needs treatment. Taking the wrong action can set you up for being sued, and it’s hard to win a case if the employee is taking medication as prescribed by a physician.

What you can do

There are ways that employers can legally find out if employees are taking opioids. You can set a policy that requires employees to disclose if they are taking prescription medications that may cause impairment or come with warnings about drowsiness.

This is legal under Equal Employment Opportunity Commission regulations as long as the policy is companywide.

But if you think you have a worker on staff who has a substance abuse problem, you need to go through an interactive process as prescribed by the ADA.

Steps under the interactive process start with talking to a worker you think has a substance abuse problem or is taking medication that could create a safety risk, to see if there is some way you can accommodate them. That could include:

  • Restructuring their job.
  • Offering a leave of absence to let them get treatment.
  • Modifying their schedule so they don’t have to work after they have taken their medication.
  • Reassigning them to a vacant position that will not put them or others at risk.

If you have an employee who has been on leave to get treatment for their substance abuse, you can ask them to take a fitness-for-duty exam to make sure they are up for resuming their old job.


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