Opioids, Workers’ Compensation, and Employment Concerns

Karen Forner

Nationwide, there are more than 1,000 emergency department visits and about 91 deaths per day related to prescription opioid use. Since 1999, prescription opioid sales and overdoses have quadrupled. From 2006–2016, there have been 7,595 opioid-related deaths of which 5,559 involved prescription opioids and 1,782 involved heroin. The high rates of opioid abuse and overdose have prompted state and federal action to address the issue.

Workers’ Compensation
The use and abuse of opioid prescriptions impacts industrial insurance claims directly. In 2013, opioids constituted 3% of medical costs on shorter claims and 15–20% of medical costs on longer claims. Injured workers who begin opioid medication due to an injury may develop an addiction even while taking the medication as prescribed. Chronic opioid use and addiction can cause or aggravate other health problems that could become claim-related. Chronic opioid use can also increase pain sensitivity and the likelihood of disability conviction, hampering return to work efforts.

In an industrial insurance context, it is often prudent to get ahead of any opioid-related issues. Sensitivity to red flags and working with the Department of Labor and Industries to limit or halt authorization of opioid medication can mitigate the risk chronic opioid use presents.

Specifically, the following red flags may suggest opioid-seeking behavior or dependence: history of substance abuse, increased opioid dosages, chronic pre-injury use, traveling long distances or to multiple doctors for prescriptions, doctor shopping, other habit-forming prescription medications, change in appearance or habits, or change in job performance.

In addressing actual or potential claim-related opioid issues, communication with the Department is key. The Department recently implemented procedures for chronic opioid therapy that lasts more than 12 weeks. These procedures require a clinically meaningful improvement in function related to the opioid therapy for continued authorization or an increased dosage. If treatment is authorized, it is reevaluated every 12 weeks thereafter. The Department encourages tapering down opioid dosages when discontinuing their use.

Employment & Best Practices for Employers
Opioid and other employee drug use presents additional risks including absenteeism, poor production, interpersonal conflict, increased risk of injury or workplace accident, theft, after-effects of use, and illegal activity at the jobsite. Pro-active employers with robust substance policies can limit these risks, and certain employers covered by the Drug-Free Workplace Act of 1988 may be required to act.

Clear and robust workplace policies that are uniformly applied are among the most effective tools an employer has. Specifically, policies prohibiting substance consumption or intoxication on the job, and establishing consistent drug testing are effective. For example, many employers drug test all workers in the post-offer, pre-hire phase; upon reasonable suspicion of use or intoxication; post-accident; upon return to duty; at set periods; and/or, randomly. The exact parameters of a testing policy are flexible, but they should be clearly communicated to employees and consistently applied to all employees.

Although marijuana/cannabis has been legalized in Washington, there is no job protection written into the law for medical or recreational use. Employees should clearly be put on notice if cannabis is a prohibited substance in the workplace and that disciplinary action, including termination, could result if they test positive.

Additionally, some employers provide services such as an Employee Assistance Program (EAP) to provide short-term, confidential substance-related counseling as an employment benefit. Others work to educate workers about the health and productivity hazards associated with substance abuse or dependence in the broader context of a wellness program. No matter what actions an employer takes, it is helpful to reduce any stigma associated with substance dependence treatment.

An employer’s substance use and abuse policies can increase liability exposure if they are applied inconsistently. Additionally, Washington recognizes addiction as a disability in certain instances when an individual is in recovery. Disparate treatment on the job or in hiring procedures could expose an employer to lawsuits. However, this does not mean intoxication or use of illegal drugs creates a protected class.

Employment laws are changing at breakneck speed, and handbooks should have a recent legal review to ensure they are compliant with current laws. Proactive steps to prevent problematic opioid prescriptions on a workers’ compensation claim can help limit costs and improve return to work timelines and outcomes. The best offense is a good defense. Smart hiring practices, a robust and up-to-date employee handbook, and consistent application of workplace policies with sensitivity to possible disabilities can limit exposure to liability.