Legal Considerations: Protecting The Employer And The Employee An Employee’s Perspective © 2016 Messing, Rudavsky & Weliky, P.C. OUR WORKPLACES & THE OPIOID EPIDEMIC Ellen J. Messing Gavriela M. Bogin-Farber Messing, Rudavsky & Weliky P.C. 50 Congress Street, Suite 1000 Boston, MA Phone: (617) Fax: (617)

FAMILY AND MEDICAL LEAVE ACT Applies to employers with 50 or more employees within a 75 mile radius Applies to employees who have been with the employer for 1 year and have worked at least 1250 hours Leave can be taken for inpatient substance abuse treatment, chronic illness, or acute illness of more than 3 days of employee/parent/spouse/child © 2016 Messing, Rudavsky & Weliky, P.C. 2

Under FMLA, employee can take up to 12 weeks of leave per year (unpaid or as company policy determines) with continued health insurance If leave is to care for qualified military service member, employee can take up to 26 weeks per year and can be for “next of kin” Leave can be intermittent if medically necessary Employee’s job is protected and retaliation is forbidden © 2016 Messing, Rudavsky & Weliky, P.C. FAMILY AND MEDICAL LEAVE ACT CONT’D 3

MASSACHUSETTS SICK LEAVE LAW Applies to most employers/employees (full or part time) Employers with 11 or more employees must provide 40 hours of paid sick time per year Employers with less than 11 employees must provide 40 hours of unpaid sick time per year © 2016 Messing, Rudavsky & Weliky, P.C. 4

MASSACHUSETTS SICK LEAVE LAW CONT’D Employees can use accrued sick time after 90 days on the job Employees can roll over up to 40 hours of unused sick time to the next year Sick time can be used for illness or scheduled medical appointments of employee/ parent/ spouse/ spouse’s parent/ child © 2016 Messing, Rudavsky & Weliky, P.C. 5

INVASION OF PRIVACY Massachusetts Privacy Act limits disclosure of private facts about employees by balancing employee expectation of privacy against employer interest in disseminating information Test is interference with privacy unreasonable, substantial, or serious? Invasion of privacy if employer discloses private information beyond what is reasonably necessary  OK for employer to ensure employee’s fitness for job, but not OK to overly share concerns about employee’s performance or suspected drug abuse  OK to tell employees why individual was fired, but may invade privacy to share individual’s treatment for drug abuse/suspicion that individual is abuser © 2016 Messing, Rudavsky & Weliky, P.C. 6

PRIVACY AND DRUG TESTING Privacy Act limits employer drug testing by balancing employees’ interest in privacy against employer interest in productive workforce Balancing test for private employers:  Has company experienced problems due to employee substance abuse?  Did company give employees advance notice of drug testing?  Is employee applicant or probationary employee (fewer protections)?  Reasonable cause to believe an individual is impaired or that impairment would cause high risk of injury in given job? © 2016 Messing, Rudavsky & Weliky, P.C. 7

PRIVACY AND DRUG TESTING CONT’D Balancing test for private employers (cont’d):  Procedural safeguards to minimize intrusiveness of test and assure validity of results?  Prior notice of testing;  Offer of rehabilitation for first-time offenders;  Use of established medical facilities & testing labs, with independent medical review;  Collection procedures that minimize intrusion © 2016 Messing, Rudavsky & Weliky, P.C. 8

AVOIDING DISCRIMINATION BETWEEN DIFFERENT KINDS OF ADDICTION Opioid addiction: a medical crisis affecting the entire population, increasingly in suburban as well as urban areas Officials and law enforcement are addressing it as a public health issue rather than punitively Important for employers to respond to other drugs commonly associated with inner city in an equally compassionate manner © 2016 Messing, Rudavsky & Weliky, P.C. 9

Thank you! © 2016 Messing, Rudavsky & Weliky, P.C. 10