Opioid Crisis Spurs Lawmakers to Provide New Employer Protections: What Does It Mean for Your Business?

By:  Tyler S. Lemen

In March, Governor Holcomb signed the House Enrolled Act 1007. This legislation is meant to help curb the effects of the opioid crisis with a focus on expanding opioid treatment programs.  It also provides new protection for companies with employees who have previously failed a drug test.

While the Governor has signed the bill into law, it is conditioned on approval by the Indiana Commission to Combat Drug Abuse.  The Commission has not yet considered the new legislation.

After its full approval, employers that comply with the law will be immune from future negligent hiring actions brought by third parties injured by an employee receiving drug abuse treatment.

What is negligent hiring?

An injured third party may sue an employer alleging the employer knew or should have known that the employee’s background indicated a dangerous or untrustworthy character.

How does this new protection work?

If a current employee fails a drug screen, the employer would have the option to require the employee to participate in drug education and addiction treatment services as a condition of employment and can deduct the cost of treatment from the employee’s assignable wages.  By offering continuing employment to the employee, subject to the employee attending the necessary treatment, the employer automatically secures immunity from future negligent hiring actions related to the employee receiving treatment.  Further, the employee’s participation in addiction treatment is not admissible as evidence in any civil action against the employer.

Is your employee handbook up to date?

To take advantage of this change, your substance abuse policy must be updated to reflect protections afforded by the new legislation.  Substance abuse policies are an essential tool in setting expectations for current and future employees, while also providing a defense against potential actions brought by former employees.

Contact the Labor & Employment group at DSV for more information about this new protection or with questions about updating your substance abuse policy.