Cotney head shotThe opioid epidemic in the United States reached into crisis territory last year, prompting some national leaders to call it the worst drug problem in the nation’s history. The construction and roofing industries are hardly immune, and some argue are even leading the downward spiral. According to published reports, construction workers trail only food service employees in overall vulnerability to opioid abuse.

According to the Centers for Disease Control and Prevention, an average of 115 Americans die every day from an opioid overdose. The National Institute on Drug Abuse further reports that between 21 and 29 percent of patients prescribed opioids misuse them; 8 to 12 percent develop an opioid use disorder; and 4 to 6 percent who misuse prescription opioids transition to stronger drugs like heroin. Trent Cotney, president of Cotney Construction Law, recently discussed the scope of the problem in roofing with RC and how industry stakeholders can help.

RC: For starters, why is opioid abuse a problem specifically in roofing?

TC: One reason the opioid crisis is so prevalent within the construction industry is that the injury rate for construction workers is 77 percent higher than the national average, according to a Midwest Economic Policy Institute study. Roofing and construction workers face higher injury rates and require pain medication to deal with on the job injuries. Further, workers who receive an injury and obtain a prescription for opioids to deal with the pain often do not allow the injury to heal and instead become reliant on opioids, adding to the crisis.

RC: At IRE 2018 you spoke about the impact of marijuana legalization on the industry. How is the opioid situation different?

TC: The opioid situation should garner much more concern than marijuana use in the workplace. For starters, and as previously stated, 115 Americans die every day from an opioid overdose.

There is much more research about opioid efficacy and potential harm due to opioid’s legal status within the United States. It should also be noted that marijuana is increasingly prescribed by physicians to treat opioid addiction and fight opioid withdrawals.

When opioids are prescribed for pain, they bring fast relief and an accompanying sense of calm. The issue arises when the pain relief fades and more opioids are required to enjoy the same level of pain relief. This can, and often does, spiral into dependency and addiction.

RC: What are the top concerns roofing contractors in general need to worry about now?

TC: In order to combat the issues affecting roofing contractors and other employers in dealing with the opioid crisis, employers need to be willing to speak with their employees and acknowledge to the public that there is indeed a problem.

Failure to discuss issues relating to addiction and opioid abuse with employees further exacerbates the problem since employees are not admitting to opioid use or addiction. It is often the case that an employer does not discover an employee’s opioid or marijuana use until after that employee fails a drug test that is part of a post-accident investigation. This often results in the employee being fired on the spot. Rather than dealing with this unfortunate scenario, employers can discuss opioid issues with employees and potentially discover opioid abuse before it results in an accident on the job.

Discovering an opioid issue with an employee before it results in an accident can save the employer both time and money. The employer can prevent damage from an accident if the employer discovers the opioid problem and insists the employee seek treatment. The employer will also not have to devote time and energy to finding and training a replacement.

Employees working with heavy equipment and in awkward positions on the jobsite inevitably leads to injuries. It’s often the case that the employee rushes back to work and compensates the pain with prescription opioid pain killers. This does not give the injury the proper amount of time to heal and instead often leads to aggravation and worsening of the original injury, resulting in prolonged pain killer use.

Employers must make thorough investigations into employee injuries and continue to monitor the employees healing process. Only when the employee has allowed an injury to heal appropriately and has stopped taking prescription pain killers should a roofing contractor allow an employee to return to the jobsite. This protects not only the employer from liability for mistakes made by the employee, but more importantly ensures a safe working environment for all those on the jobsite.

Workers under the influence of opioids or marijuana have decreased motor skills and decision making, resulting in an increased risk of causing harm to themselves and others. This means business owners risk not only spending more project funds on correcting mistakes made by employees under the influence, but also risk litigation as to who is liable for injuries and property damage resulting from the mistakes.

Many states have laws that place the liability with owners of the project. However, owners will often include indemnification clauses in contracts with a contractor that shifts the burden on the contractor to indemnify, defend, and hold harmless the owner of the project. This scenario often results in protracted litigation. Employers who prioritize keeping jobsites free from marijuana and opioids will avoid having to spend time and money on correcting and rehabilitating injured employees.

RC: What about zero-tolerance and prescription drug policies?

TC: New state medical and recreational marijuana laws make zero-tolerance policies in current employee handbooks in need of immediate updating.

Most states, and the federal government, permit employers to enforce zero-tolerance policies in the workplace. Other states provide employees some protection when marijuana use is consistent with state law.

Employers will need to review their states marijuana laws to determine specifically what they may or may not include in zero-tolerance policies. Most employers will be able to continue enforcing the policy in regards to on-the-job marijuana use and need to review state laws to determine whether the policy may be broader.

Many employers have a zero-tolerance policy directed at illegal drugs, but most do not have a prescription drug policy in place. Taking prescription drugs is not illegal, making it difficult for employers to institute policies that affect employees’ ability to medicate.

To start, prescription drug policies should outline what an employee must do if they’re prescribed drugs that commonly cause impairment, such as opioids. If the employee is performing dangerous activities on a job-site, the policy should clearly inform the employee that performing the task while under the influence of an opioid is prohibited.

The policy should also state what actions the employer will take if he or she believes an employee is taking prescription drugs without a prescription or is taking the drug in larger doses/more frequently than recommended. To accomplish this, employers can add prescription drug testing to illicit drug tests to determine if an employee is taking prescription drugs without a prescription.

Employers must tread lightly when making decisions about an employee’s ability to perform their job duties because federal and state discrimination policies provide some protections. Employees performing dangerous jobs do not require the same accommodations that other employees, but employers can still find themselves in hot water for firing an employee for prescription pain killer use.

RC: What do you hope roofing contractors will get from your presentation?

TC: We hope that contractors understand the gravity of the opioid epidemic in the United States and the potential negative impacts it has on contractors and their businesses. In addition, we hope contractors are aware of the vast differences in state laws governing marijuana and do their due diligence to remain up-to-date on changes in laws within their state. This seminar is designed to help contractors issue spot and implement policies that may help combat improper use of opioids and marijuana.

Cotney will speak during IRE Session WE01 (Combating Drug Abuse in Roofing) on Wednesday, Feb. 13, 7:45 a.m. to 9:15 a.m. in room 208AB.