Oregon’s Measure 110 Creates an Employer Dilemma in Absence Programs

On February 1, 2021, Oregon became the first state to decriminalize the possession of heroin, cocaine, methamphetamine and other drugs for personal use. Ballot Measure 110, which is the basis of decimalization, prohibits drug sales but makes possession of a controlled substance a Class E violation, resulting in a maximum $100 fine and mandated drug addiction treatment and recovery.

From an employer’s perspective, Measure 110 creates a whole new set of unanswered questions. Specifically, how does Measure 110 play out in terms of the Family and Medical Leave Act (FMLA), the Oregon Family Leave Act (OFLA), and the Americans with Disabilities Act (ADA)? What about short-term disability benefits, not to mention the Oregon Paid Family and Medical Leave (PFML), which becomes effective in 2023?

In the wake of Oregon entering unchartered territory, employers need direction. While awaiting further guidance, we explore below how Measure 110 may affect absence programs.

FMLA and OFLA: Running concurrently?

The FMLA defines a serious health condition as “an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical facility; or continuing treatment by a health care provider.” The FMLA clarifies that treatment for substance abuse is a serious health condition if the employee needs inpatient care, continuing treatment, or both as part of the treatment.

Further, FMLA leave may be taken only when a health care provider provides or prescribes substance abuse treatment; absence from work due to use of the substance itself does not qualify for FMLA leave. Yet, if Oregon itself is directing or requiring addiction treatment, it’s unclear whether FMLA will apply — can the state of Oregon be considered a health care provider?

Measure 110 allows individuals who receive a citation for possession to complete a health assessment within 45 days of the citation in lieu of the fine. However, it is unclear whether individuals will satisfy the FMLA’s definition of serious health condition in completing the health assessment. Beyond the health assessment, will individuals be subject to any mandatory ongoing treatment? How will employers verify that an employee in this situation is suffering a serious health condition? And don’t forget that these questions are also relevant if an employee is seeking leave to care for a family member found to be in possession of a controlled substance. Will the employee’s family member truly have a serious health condition as defined by the FMLA?

Although largely mimicking the FMLA, the Oregon Family Leave Act (OFLA) does not expressly discuss treatment for substance abuse. One may argue that an employee or an employee’s family member who, as part of their substance abuse treatment, requires inpatient care or ongoing treatment thereby meets the conditions of a serious health condition under OFLA. But considering OFLA is silent on the matter while FMLA directly addresses substance abuse treatment, it is unclear whether FMLA and OFLA would run concurrently in this specific leave situation.

ADA versus state law

Is addiction considered a disability? The ADA states that illegal drug use includes the use, possession, or distribution of drugs considered illegal under the federal Controlled Substance Act. Multiple case law examples have established that employers are not obligated to provide an accommodation when an individual is using or in the possession of illegal drugs.

However, state law may differ as not all state disability discrimination laws include restrictions on illegal drug use. Most case law examples concern medical marijuana use, but just as some state courts have ruled that employers are required to accommodate medical marijuana use by disabled individuals, it’s uncertain how the state of Oregon will clarify whether if it considers addiction a disability.

Short-term disability, and Paid Family and Medical Leave

An employee who needs a leave of absence to attend to prescribed drug addiction treatment may be eligible for short-term disability benefits. But as with the FMLA, it’s not yet clear if state-prescribed health assessments will satisfy a short-term disability plan definition of appropriate treatment.

Further, if additional treatment is needed, who will prescribe that treatment, and how will the short-term disability carrier receive the appropriate information/documentation to support claim benefits? In addition, if the short-term disability carrier needs additional information, will the carrier reach out to Oregon’s addiction recovery center?

It’s also uncertain how Measure 110 will affect Oregon’s Paid Family and Medical Leave (PFML), which goes into effect in 2023. The spirit of Measure 110 is to reduce barriers to addiction treatment therapy, and if PFML includes Measure 110 as a qualifying leave reason, we may see an increase in leave requests.

Now what?

While awaiting more guidance on Measure 110’s impact on absence programs, it’s a good time to review internal absence policies and procedures, as well as brush up on current definitions within each of these programs. Again, keep in mind that this is a continuing conversation, so it’s expected that more information will become available soon.

Contact a HUB expert in employee benefits to help handle the ever-changing landscape in absences and leave law and regulation