Legal Consult: Are Your Employees Abusing Drugs or Alcohol?


 
 

W. Ann Maggiore | | Tuesday, June 26, 2007


Recent headlines have been filled with stories of addicted paramedics and how they stole drugs, tampered with medications meant for patients, drove emergency vehicles while under the influence, and responded to critically ill or injured patients while impaired. Such articles have plainly notified the public that some rescuers may actually pose a threat to them. Now that the public has been alerted to the problem, both private and governmental EMS agencies are scrambling to ensure that their services don't have such problems. The stakes of substance abuse in EMS run high. EMTs under the influence endanger the public, and these scandals reduce the community's confidence in EMS and violate the trust we have worked hard to build with our patient population.

My experience

I temporarily left EMS in 1993 after a substance abuse scandal tore apart my local EMS system. I had literally begged our area EMS administrators and medical directors at various levels to look at a serious problem, but they opted for the "ostrich" approach. The state licensing agency refused to investigate: The substance abuser was the head of the transport service and had unfettered access to narcotics. Some months after my departure, law enforcement intervened and found that this small-town ambulance service had used more morphine in the preceding year than all the ambulance services in the rest of the state combined! The result: headlines in the newspaper, felony indictments and a "thumbs down" to all the administrators who failed to act. Fourteen years later, the problem in EMS hasn't gotten any better in fact, it's apparently gotten worse. I have now provided legal representation to numerous paramedics with substance abuse issues and have seen some of them successfully rehabilitate.

Don't be an ostrich

EMTs and paramedics have the same predisposition to substance abuse as our colleagues in other areas of medicine: We work in a high-stress environment with access to medications. Physicians and nurses have dealt with substance abuse in their ranks for many years, often successfully. EMS has a long way to go before it measures up.

EMS administrators must recognize substance abuse before it's too late. But how can they handle this growing problem? Is the answer support and treatment, coupled with EMT "diversion" programs? Or should your service have "zero tolerance" policies that take no prisoners? Whichever option your organization chooses, it will be critical to create an environment in which substance abuse is recognized and dealt with swiftly.

The most important tool in recognizing substance abuse is to create a culture within your service that doesn't allow it. Criminal behavior simply cannot be tolerated in our workplace. The real answer is proactive management that takes early steps to keep a clean and healthy workforce.

Begin by questioning new hires on their attitudes toward substance abuse. Would they turn in a partner they suspected of coming to work impaired? Start a discourse in the interview process to weed out rote answers and get at the true moral fiber of the EMTs you consider hiring.

Crews should be educated to know the signs of substance abuse, vigilant about watching for them in their co-workers and encouraged to report unusual behavior in a nonpunitive environment. You also need to teach your employees that they aren't helping their colleagues or anyone else by hiding a co-worker's substance abuse. Early intervention is the key to successful rehabilitation.

Look for telltale signs of substance abuse. Are there paramedics in your service who request morphine orders more often than the others or who habitually ask for morphine for patients with back pain or abdominal pain? An EMT's disheveled appearance, failure to show up for work, bizarre behavior, tardiness, errors in patient care and inattentiveness are all "red flags" for a substance abuse problem. Also be alert for employees with family problems, financial difficulties or depression. We are all too familiar with the smell of alcohol, but many of us hesitate to call it what it is when we smell it on our colleagues in uniform.

Instead of ignoring these sometimes-subtle behaviors, investigate them and fast. EMTs often can help everyone but themselves, and we need to be aware of those among us who are at risk for substance abuse.

Random drug testing is very important, and it should not be "bargained away" in your collective bargaining agreement by including a provision requiring suspect behavior before management can ask for a test.

Maintain careful control of your narcotics inventory, and check it regularly to quickly detect any problems. Supervisors should randomly check the drugs on the units and their packaging for signs of tampering, and you should watch your drug logs closely for patterns of usage.

When you suspect abuse

If you discover a problem, don't hesitate to act. Immediately bring the suspected substance abuser in for a serious discussion of his or her problems. Enlist the assistance of your service's medical director to address addictive behavior. Although an impaired EMT is a danger to the public and should be treated as such, a punitive environment will often create a brick wall that will prevent you from getting to the heart of the matter. Instead, offer a way out: An EMT may well accept administrative leave, rehabilitation and a chance to change the downward spiral into a new course if it's not too late. In fact, many substance abusers are relieved to be caught and to no longer have to live with their secrets.

Many state EMS agencies now have diversion programs similar to those available to physicians and nurses. These programs reward self-referral and provide avenues to rehabilitation that are confidential and may put an impaired EMT back on the right track. However, if you intervene too late and/or the employee is not willing to acknowledge the problem and accept an opportunity to deal with it, termination may be your only option.

The legal risk

Yes, there are legal pitfalls in handling substance abuse in your workforce. You want to have as much evidence as you can get before placing an EMT on administrative leave or terminating a paramedic as a danger to the public. However, it's never wise to keep an EMT in the field when you suspect impairment even at the risk of a lawsuit.

Follow applicable progressive discipline as much as possible without endangering the public. Keep confidential information, such as drug test results, confidential. Although the Americans with Disabilities Act does not cover current substance abuse, it may apply to persons who are in rehabilitation from drug or alcohol abuse. Consult with your organization's legal representatives about how to best handle referrals to rehabilitation or termination to make sure that you do not violate state or federal laws.

Ensuring that your crews are not embezzling the narcotics entrusted to them, coming to work under the influence or committing other felonies while on the job isn't as hard as we are often led to believe.

"We didn't know" is no longer an acceptable excuse. The signs are always there; you just need to be looking for them. And when you find a problem, you need to act decisively.

W. Ann "Winnie" Maggiore, NREMT-P, JD, has been a full-time paramedic, an assistant fire chief, a state EMS administrator and a criminal prosecutor. She practices law full time in Albuquerque, N.M., defending physicians, dentists, nurses, law enforcement and EMS personnel against lawsuits. She also writes on EMS legal issues; frequently lectures at national conferences; and teaches legal issues to faculty, residents and paramedic students at the University of New Mexico School of Medicine, where she holds a volunteer faculty appointment. Contact her atdesertrose1@wildblue.net








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