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Overdose cure at work may bring liability risks


Following the federal government’s approval of over-the-counter use of the lifesaving opioid antagonist naloxone, efforts are underway to encourage employers to keep it in workplace first-aid kits to help prevent employee overdoses. 

The campaign to do so, launched by the National Safety Council at its annual Congress & Expo in October and endorsed by organizations such as The National Institute for Occupational Safety and Health, is one push in reversing a yearslong trend of deadly opioid-related overdoses, some of which take place in the workplace.

Legal experts, however, warn that the move comes with risks for companies.

Naloxone, which goes by the brand name Narcan and has been available over the counter as a nasal spray since the U.S. Food and Drug Administration expanded its widespread availability in July, is known to quickly reverse the effects of an overdose of such drugs as heroin, fentanyl and prescription opioid medications. 

According to the National Safety Council, workplace “unintentional overdose deaths from nonmedical use of drugs or alcohol” have increased 536% since 2011, and workplace overdose deaths totaled 464 in 2021, which is equivalent to nearly 9% of all occupational injury deaths that year.

The advocacy group says that increases have been experienced across employee demographics, industries and occupations. 

Lorraine Martin, CEO of the National Safety Council in Itasca, Illinois, said getting employers on board with prevention is a logical step. 

Employers need to “make sure that their workforce is ready to respond just like you would for things like a heart attack in your workplace or somebody you know needing a tourniquet or bandages,” she said. “First aid and emergency response are what companies have been (doing) for years. … We now need to add this additional emergency, as a potential overdose is something that you have to be ready for.”

Several organizations, including the American Red Cross, have increased low- to no-cost training on administering naloxone. Yet taking steps to store and provide the drug in the workplace has some risk and legal implications for employers, according to legal experts. 

Novelty is an issue, as over-the-counter approval for naloxone is relatively new, and the U.S. Occupational Safety and Health Administration has remained silent on what employers are obligated to do if an overdose takes place on site, experts say. 

OSHA has since 1993 collected data on reported drug overdoses, which some say goes underreported unless the fatality is linked to another incident, such as a fall. For example, for 2021 the agency records 12 incidents involving a “drug overdose” in the workplace while U.S. Bureau of Labor Statistics numbers show hundreds. 

The agency has acknowledged how the opioid epidemic has affected workers, citing the steady rise in overdose deaths. But there is no standard for managing overdoses, and it’s up to employers how to handle the issue, according to legal experts. 

John Ho, New York-based co-chair of the OSHA Workplace Safety Practice at Cozen O’Connor P.C., said OSHA’s first-aid standard — which requires workplaces to have first-aid kits and an employee trained in application of first aid — isn’t clear on overdoses. 

The standard requires that employers that are not in proximity to a medical facility have on site and in first-aid kits materials that are specific to the needs of their operation. For example, a workplace that handles hot substances must have materials on hand to assist with burns. 

Putting naloxone in a first-aid kit has to be “deliberate and thought out,” said Mr. Ho. Keeping the substance on site could potentially indicate that an employer knows its workers may be on drugs, he added.

In high-risk industries such as construction, this could create liability considerations if a worker is injured as the result of another worker being on drugs, Mr. Ho said. 

“Employers really need to get their arms around the legal liability for engaging in this,” he said. 

Caroline Berdzik, Princeton, New Jersey-based chair of Goldberg Segalla LLP’s employment and labor, health care, and long-term care groups, wrote in an email that “since OSHA has not yet weighed in on overdoses in the workplace and handling of overdoses” it will be up to employers, who will be taxed with training on administering the drug. This would bring OSHA requirements for administering medical care into play. 

“There are no specific standards for employers to be guided by other than the existing OSHA standards which cover areas such as safety training and blood-borne pathogens,” Ms. Berdzik said, adding that “other risks that come into play involve when an employee may mistakenly believe someone is overdosing and improperly administers the drug, which can have side effects for the recipient.” 

Companies should consider state “Good Samaritan” laws that provide legal protections for people engaging in lifesaving acts. 

According to a paper filed with the National Library of Medicine in 2022, 40 states and the District of Columbia have such laws written specific to opioid overdoses, many of which were created to encourage bystanders to call emergency services in the event they witness an overdose. Experts say it’s not clear how such laws would apply to naloxone administration, considering how recently it was approved for over-the-counter use. 

Ms. Martin said companies’ experience with automated external defibrillators can provide some clarity on how to proceed. OSHA provides some guidance on such devices, intended for use in sudden cardiac arrest, calling on employers to maintain a written plan for use and training. 

Issues of liability and safety “were navigated for most workplaces” that installed AEDs on site, she said, adding that it’s likely regulators will catch up when it comes to opioid overdoses. 

It’s a common question whether naloxone, wrongly administered, would cause an adverse health reaction, but the risk is little to none, said Dr. L. Casey Chosewood, Atlanta-based director of NIOSH’s Office of Total Worker Health. 

Naloxone is “safe even if someone is disabled or unconscious and it’s not from overdose,” he said. 

“Let’s imagine in the workplace you find someone who’s unconscious or appears to be struggling to breathe and you’re uncertain as to what the cause of their impairment or their disability or medical symptoms. … You do not do any harm by using naloxone. It may not work if the condition is not an overdose, but you’re certainly not doing any additional harm to that person.”