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As the number of deaths has increased, so has the number of employees overdosing in the workplace. Employers are justifiably alarmed and want to do all they can to save lives. This may include stocking nonprescription naloxone nasal sprays in the workplace.
Naloxone is a medication used to rapidly reverse the effects of opioid overdose. Narcan and RiVive are two of the available nonprescription nasal spray versions of naloxone. On March 29, 2023, the U.S. Food and Drug Administration (FDA) approved Narcan for over-the-counter, nonprescription use, thereby making this life-saving medication much more accessible to employers. The FDA gave RiVive and a generic version the same approval in July 2023. Both the CDC and the National Safety Council (NSC) encourage workplaces to set up naloxone protocols.
As the adage says, with opportunity comes responsibility, and employers are understandably concerned about training, workplace safety considerations, and potential legal ramifications with regard to stocking and administering naloxone in the workplace.
Workplace Safety Implications
The Occupational Safety and Health Administration (OSHA) has not yet set a standard that deals with drug overdoses. However, the National Institute for Occupational Safety and Health (NIOSH) issued resources in 2018 for employers considering whether they should implement a naloxone availability and use program. More recently, Todd VanHouten, chair of the committee that oversees OSHA’s first aid kit standard, 29 C.F.R. § 1910.151(b), was quoted as saying that he expected naloxone to be included on the committee’s 2023 agenda.
OSHA has issued various interpretation letters and standards regarding post-incident drug testing, as it relates to 29 C.F.R. § 1904.35(b)(1)(iv). However, OSHA has not explicitly tackled what happens when on-site drug use turns into an on-site overdose. This means that for now, employers must simply rely on OSHA’s current guidance related to safety training, bloodborne pathogen training, personal protective equipment (PPE), and recordkeeping.
As with other tools kept on-site, employers choosing to stock naloxone will want to make sure that those who may be administering one of the drugs are appropriately trained. While the drugs are not required to be administered by licensed healthcare professionals, employers may want to carefully consider whether training should apply to all employees or a smaller population. Training for the administration of the drugs is widely available—and typically free—through local health departments and social service agencies.
In addition to determining who should attend any naloxone-specific training, employers may want to consider what training components might be necessary. First, employers may want to include bloodborne pathogen training. 29 C.F.R. § 19010.1030 requires employers to protect workers from occupational exposure to human blood or other potentially infectious materials, which can occur in overdose instances where blood or needles might be present. This means that while OSHA cannot specifically issue citations on how employers would train on the use of naloxone, there could, under certain circumstances, be grounds for a citation related to a violation of 29 C.F.R. § 19010.1030.
Employers may also want to determine whether stocking naloxone may require additional PPE training. Those administering naloxone would likely need to know how to properly use PPE, such as gloves and face protection. Employers with PPE programs in place might consider revising their programs to include such PPE use in specific cases involving naloxone nasal sprays.
With regard to recordkeeping practices, the mere administration of a naloxone nasal spray to an employee does not automatically make a workplace injury or illness recordable under 29 C.F.R. § 1904. Nonprescription naloxone nasal sprays would therefore not be considered medical treatment beyond first aid as defined by 29 C.F.R. § 1904.7(b)(5).
Implications Related to Good Samaritan and Naloxone Access Laws
Any employer considering stocking nonprescription naloxone nasal sprays in the workplace will likely question the legal ramifications related to their administration, particularly in the event the drug is given to someone who is not in fact overdosing on opioids. While the laws are far from uniform, notably, all fifty states and the District of Columbia recognize either a Good Samaritan law, a naloxone access law (which protects individuals who administer naloxone), or both. Many jurisdictions, such as Colorado, expressly protect employers from liability related to emergency aid provided by employees in good faith. Also, importantly, the naloxone nasal sprays will not harm someone who is given the drug but is not in fact suffering an opioid overdose—the only impact is to reverse an opioid overdose, and it will have no effect on someone who is not overdosing on opioids.
For now, with regard to stocking nonprescription naloxone nasal spray in the workplace, employers may want to note the following:
Ogletree Deakins’ Drug Testing Practice Group and Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Drug Testing and Workplace Safety and Health blogs as additional information becomes available.