ABC
Employers in New York risk civil lawsuits if they don’t properly train employees on administering first aid to colleagues who overdose on opioids, business advocates warned.
The litigation threat comes as a new state law is scheduled to go into effect in June requiring employers to include an opioid antagonist such as naloxone in their first-aid kits. It’s one of several recent New York measures addressing substance abuse at work.
Employer groups support making opioid antagonists available in the workplace. But some are raising questions about legal risks associated with having workers administer the medication, when they aren’t trained medical professionals—especially if similar measures spread to other states.
“It’s well known that when New York sneezes, the rest of the country catches a cold,” said Brian Sampson, president and CEO of the Associated Builders and Contractors Empire State chapter. “If other states copy these mandates without providing funding for proper training, they risk creating new liabilities instead of real solutions.”
Attorneys say there isn’t well-established case law involving employer liability following the administration of an opioid antagonist to an employee. However, negligence, wrongful death, and other tort lawsuits against companies are still possible, attorneys say.
“Employers should document written overdose response policies, maintain signed HIPAA nondisclosure authorizations, and ensure that trained responders are clearly authorized—and not penalized—for administering naloxone,” said Howard M. Wexler, a partner at Seyfarth Shaw LLP in New York, referring to the Health Insurance Portability and Accountability Act.
Unintentional drug overdoses, such as from fentanyl, led to 525 occupational deaths in 2022, according to the latest US Bureau of Labor Statistics data.
The US Occupational Safety and Health Administration doesn’t regulate substance abuse in the workplace, leaving states to fill the gap.
Apart from New York, California enacted a law that requires its state workplace safety agency, Cal/OSHA, to adopt a regulation that mandates inclusion of an opioid overdose reversal medication in first-aid kits by 2028.
Legal Shields
Workers’ compensation systems, which provide partial wages and medical expenses for on-the-job illnesses and injuries, generally shield employers from employees’ tort lawsuits.
To overcome the workers’ compensation bar, employees would have to show gross negligence or intentional misconduct by their employer.
“If an employer fails to train staff, maintain supplies, or integrate naloxone usage protocols, they could face OSHA citations—or even civil liability—if an overdose occurs and first responders are denied the tools or knowledge to act,” said Wexler.
“Employers should view these new obligations as building blocks for a broader workplace wellness initiative,” he added.
Individual workers would very rarely get sued, but even if they did, they would likely be protected by Good Samaritan laws. New York’s 911 Good Samaritan Law, for example, protects individuals administering naloxone from civil and criminal liability.
Substance Abuse in Construction
The state opioid measure complements a recently enacted New York City law that requires construction workers to take safety trainings on mental health and substance abuse. It will go into effect in May.
The construction industry has the second highest rate of suicide in the US at 53.3 per 100,000 workers—behind mining—according to the Centers for Disease Control and Prevention.
Construction workers overall account for about 17% of overdose deaths, even though they comprise only about 8% of the US workforce, according to the Center for Construction Research and Training.
Joe Xavier, senior director of health and safety for ABC, encouraged employers to adopt a recovery-friendly workplace by developing a robust plan that ensures proper training and at least one naloxone kit per jobsite.
The Building Trades Employers’ Association, New York City’s largest contractor association, said it’s also open to the expansion of access to lifesaving tools like opioid antagonists, and that state and local funding should support effective training.
So far, construction employers in New York have expanded Employee Assistance Programs and peer-support models, as well as conducted overdose drills that incorporate naloxone readiness into toolbox talks, according to Wexler.
“These measures help reduce workplace incidents, absenteeism, and litigation risk tied to unmanaged mental-health issues and substance use,” said Wexler.