Dumb and Dumber: Showing Up to Work Under the Influence – How the District Should Respond to Prevent a Scary Sequel Katie Anderson Strasburger & Price, LLP, Dallas, TX Presented at the 2018 School Law Seminar, April 5-7, San Antonio, TX The NSBA Council of School Attorneys is grateful for the written contributions of its members. Because Seminar papers are published without substantive review, they are not official statements of NSBA/COSA, and NSBA/COSA is not responsible for their accuracy. Opinions or positions expressed in Seminar papers are those of the author and should not be considered legal advice. © 2018 National School Boards Association. All rights reserved. Dumb and Dumber: Showing Up to Work Under the Influence…How the District Should Respond to Prevent a Scary Sequel Katie Anderson and Pete Thompson Strasburger & Price, LLP The United States has engaged in a long and complicated history with alcohol, and more importantly, how to regulate it. Much of the background is rooted in an evolving social approach that developed over centuries. No other Western country currently imposes such a variety of strict regulations as the United States.1 Some experts suggest that American drinking culture is to blame for the need for more regulation.2 In the United States, alcohol is often treated as a forbidden fruit until the age of 21, when instant, unfettered access is granted.3 Unfortunately, there is no reliable cultural mechanism to teach young adults how to drink responsibly; the primary concern is when they are allowed by law to drink. This situation creates what some commentators describe as a “binge-drinking” culture.4 In this, Americans are somewhat unique among our western counterparts; in many European countries, children gain exposure to small amounts of alcohol in the home at an earlier age.5 In addition, there is less glorification of alcohol through advertising and other social contexts.6 Essentially, while a leisure activity, consuming alcohol in other countries is often treated as nothing more than an accent to a meal.7 1 See Minimum Legal Drinking Age in 190 Countries, PROCON.ORG (Updated March 10, 2016). 2 See Layla Bryndzia, Drinking Culture in America Versus Europe, ODYSSEY ONLINE (October 11, 2016); Chris Moody, How to drink like an American (and be historically accurate), CNN (June 21, 2015). http://www.cnn.com/2015/03/16/politics/drinking-in-america/index.html. 3 See id. 4 See Sarah Marsh & Eleni Stenfanou, Which Countries Have the Worst Drinking Cultures, THE GUARDIAN (April 15, 2016). see Bryndzia, supra note 2. 5 See id. 6 See id. 7 See id. 1 9646995.1/SP/00033/0054/011218 Additionally, the US has long struggled with an evolving drug crisis that is, in many ways, tied to the American workplace.8 Currently, prescription drug abuse continues to increase in most segments of society.9 In addition, the abuse of narcotic medication – often referred to as the “Opioid Epidemic” – has essentially been declared a public health crisis.10 Against this cultural backdrop, substance abuse has evolved as a complex problem in the United States and poses daily challenges for employers. Like most employers, school districts are tasked with navigating a maze of social and legal concerns when dealing with an employee who may be under the influence. For example, it may be easy for some to judge the employee showing up to work under the influence; but in reality that employee may be a critically ill individual in need of treatment – as opposed to a termination letter. This paper will examine three aspects of this challenging problem: (1) a brief history of alcohol regulation in the US (plus current statistics); (2) the treatment of alcoholism and addiction as a disease under the Americans with Disabilities Act (ADA) and considerations when analyzing each situation; and (3) practical tips for a school district dealing with an employee showing up to work under the influence, including a legal discussion of the employee’s constitutional right to be free of unreasonable search and seizure and when job action is appropriate. (1) Strict Laws and Widespread Use: Alcohol Regulation and Current Statistics in the United States on drug and alcohol use Understanding the cultural relationship with alcohol and drugs is critical to assessing their impact on the American workplace. Historically, the United States has struggled to 8 Catarina Saraiva, Patricia Laya and Jeanna Smialek, Opioids on the Job Are Overwhelming American Employers, BLOOMBERG (September 20, 2017). https://www.bloomberg.com/news/articles/2017-09- 20/overdosing-on-the-job-opioid-crisis-spills-into-the-workplace. 9 See id. 10 See id. 2 9646995.1/SP/00033/0054/011218 regulate alcohol as efforts have yielded mixed results. A brief review of historical events and current statistics quickly confirms this. In 1920, the 18th Amendment to the United States Constitution passed, prohibiting the sale of intoxicating liquors by declaring the production, transport, and sale of alcohol illegal.11 Notably, however, prohibition did not ban the consumption or private possession of alcohol.12 Crime rates soared as gangsters grew rich off black markets for alcohol.13 Corruption infiltrated and compromised every rank of law enforcement.14 In 1933, the United States pulled the plug on prohibition and passed the 21st Amendment to the US Constitution, repealing prohibition in full.15 Currently, the United States primarily attempts to regulate alcohol consumption through its 21-year old minimum drinking age – the highest in the world.16 Despite the legal requirement, the Centers for Disease Control (CDC) estimates that people aged 12- 20 are responsible for 11% of the alcohol consumption in the United States– 90% of this alcohol is consumed by way of binge drinking (four drinks per occasion for women, five drinks per occasion for men).17 In the adult population, approximately 23% of adult men report binge drinking five times per month – averaging eight drinks per binge.18 Approximately 12% of adult women report binge drinking three times per month, averaging five drinks per binge.19 The CDC estimates that nearly 58% of adult men and 11 See U.S. CONST. amend. XVIII. 12 See id. 13 Dominic Sandbrook, How Prohibition backfired and gave America an era of gangsters and speakeasies, THE GUARDIAN (August 25, 2012). 14 See id. 15 See U.S. CONST. amend. XXI. 16 Minimum Legal Drinking Age in 190 Countries, PROCON.ORG (Updated March 10, 2016). 17 Fact Sheets: Alcohol and Public Health, CENTERS FOR DISEASE CONTROL AND PREVENTION. 18 See id. 19 See id. 3 9646995.1/SP/00033/0054/011218 46% of adult women have had a drink in the past 30 days.20 Excessive alcohol use is responsible for approximately 88,000 deaths in the United States each year.21 Illegal “street” drugs such as ecstasy, amphetamines, cocaine, crack, methamphetamine, and heroin continue to gain a foothold among teenagers and adults.22 In addition, synthetic drugs such as bath salts (LSD), spice/K2 (pot), and N-Bomb (LSD) have become more pervasive.23 One of the most publicized trends involves legal drugs – the abuse of prescription drugs, cold meds such as Dextromethorphan (DXM), and cough medicine (“purple drank”) have grown more prevalent in schools and workplaces.24 Other drugs on the rise include sedatives such as Xanax, Ativan, Halcio, Klonopin, and Valium.25 Many experts view the abuse of opioids – narcotic medications used to treat pain (Hydrocodone, OxyContin, Vicodin) – as one of the greatest health problems faced by our society today.26 Every day, 91 Americans die from an opioid overdose.27 Effective January 1, 2018, the Joint Commission, a non-profit that accredits and certifies nearly 21,000 health care organizations in the US, prescribed new guidelines for standards related to pain assessment and management in response to the opioid epidemic.28 Some 20 See id. 21 See id. 22 See Larson, S.L., Eyerman, J., Foster, M.S., and Gfroerer, J.C., Worker Substance Use and Workplace Policies and Programs (2007 DHHS Publication No. SMA 07-4273, Analytic Series A-29). Rockville, MD: Substance Abuse and Mental Health Services Administration, Office of Applied Studies. 23 Dr. Jonathan Horey, Bath Salts Smiles and Spice: The Dangers of Synthetic Drugs, HUFFINGTON POST (June 2, 2016), https://www.huffingtonpost.com/dr-jonathan-horey/bath-salts-smiles-and- spi_b_10260468.html. 24 Purple Drank Information, NARCONON. http://www.narconon.org/drug-information/purple-drank.html. 25 Dani Kass, FDA Adds Black Box Warnings About Mixing Opioids, Benzos, Law360 (August 31, 2016). 26 See Opioid Overdose Crisis, NATIONAL INSTITUTE ON DRUG ABUSE (January 2018). https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis. 27 Understanding the Epidemic, CDC. 2016. http://www.cdc.gov/drugoverdose/epidemic/. 28 Joint Commission Enhances Pain Assessment and Management Requirements for Accredited Hospitals, THE JOINT COMMISSION PERSPECTIVES (July 2017). 4 9646995.1/SP/00033/0054/011218 of those revisions require hospitals to (1) have a leadership team responsible for the prescribing of safe opioids; (2) provide staff with resources to improve pain assessment; and (3) identify opioid treatment programs that can be used for patient referrals.29 In addition, the new revisions require hospitals to acquire equipment needed to monitor patients who are a high risk for adverse outcomes from opioid treatment.30 In further response to the crisis, on November 1, 2017, Governor Chris Christie, Chairman of the President’s Commission on Combating Drug Addiction and the Opioid Crisis, submitted the Commission’s Final report with fifty six (56) recommendations to combat the addiction crisis that is rampantly impacting our country.31 According to Governor Christie, “[o]ne of the most important recommendations in this final report is getting federal funding support more quickly and effectively to state governments, who are on the front lines of fighting this addiction battle every day..