Naloxone Kits and the Workplace

Interesting story from the CBC about the City of Edmonton's naloxone policy. (Full disclosure: The reporter reached out to me to see if I had experience with naloxone policies. I don't, and I declined the media request. But in declining, I did note that it made perfect sense to me that employers who maintain naloxone kits would need policies as to who could administer them.)

Naloxone can save lives of people having overdoses, buying time for medical assistance. Naloxone kits are distributed to the public for free. There's no necessary training. No qualification required. By all accounts I've seen, naloxone is safe.

Increasingly, businesses are being encouraged to maintain naloxone kits - particularly in high-risk areas like (in Edmonton) downtown or the Whyte Ave area.

But everywhere you see discussions of employers maintaining these kits, you're likely to also see recommendations for training, PPE, and related matters, as a precondition to using the kit. The corollary of "You must have this training to use the kit" is "You are NOT allowed to use the kit if you don't have the necessary training."

This may raise an eyebrow: Why can I - with no medical training, etc. - get a naloxone kit from any pharmacy, and I'm allowed to use it without training or PPE, but if my employer keeps a naloxone kit in my work truck or at the first aid station in the office, I'm not allowed to use it - potentially to save someone's life - unless I've gone through the necessary training?

The answer...probably isn't what you think.

Liability Risks? For once...not so much

I'll admit that my lawyer-brain is super-paranoid about an employer permitting their (non-HCW) employees to administer pharmaceuticals.

(Heck, I once had a colleague ask for one of my Reactine pills on a military exercise, and she ended up hospitalized for a week because of severe anaphylaxis. So if I'm a bit gun-shy about handing out even the most innocuous pills, there's a reason.)

But by all accounts, aside from some manageable side effects, naloxone is widely regarded as safe. The risks of liability based on erroneous administration of naloxone are probably quite low. The CBC article refers to Health Canada resources for the authority that it "cannot be improperly used" - which is consistent with my own reading on the subject. And allergic reactions, while theoretically possible, are unheard of.

So if somebody is experiencing an overdose, and is unresponsive as a result, administering naloxone is unlikely to generate meaningful legal jeopardy - regardless of how it turns out. In general, by virtue of 'Good Samaritan' laws (in Alberta, the Emergency Medical Aid Act), first aiders are only liable in the event of 'gross negligence' anyways. (It's not 100% clear that this extends to naloxone - "emergency first aid" hasn't historically extended to the provision of pharmaceuticals, though some Ontario statutes explicitly include naloxone in the definition of the phrase. In the absence of a clear definition, and in the presence of a public health crisis to which naloxone is a useful tool, I expect that courts would interpret naloxone administration as falling within that immunity.)

That's not the extent of the possible legal liability, though: Without even basic first aid training, it's entirely plausible that a person with a naloxone kit might badly misinterpret a situation, making unwarranted assumptions and administering naloxone to a person who is not in severe medical distress or showing signs of an opioid overdose. That's likely to be construed as a battery.

Consent to medical treatment can be implied, but it's important. First aid training includes some basic understanding of it, and includes assessment steps that require attempts to communicate with the person in distress before administering any sort of treatment, which - for an unresponsive person in medical distress - is sufficient to obtain implied consent.

So training somebody to recognize the signs of an overdose, and ensuring they know certain basic first aid and how to administer naloxone properly, is good practice.

But I don't think that's the most compelling reason for a naloxone policy.

Occupational Health and Safety

There are, however, risks to the employee administering naloxone.

If you come across a person having an overdose, there are a range of concerns to bear in mind when administering naloxone, as highlighted by CCOHS and NIOSH. Alberta used to maintain an OHS information sheet on this, too, but hasn't updated it since 2017.

Firstly, there's a risk of exposure to dangerous drugs - and in particular Fentanyl.

Secondly, close contact with a stranger while administering emergency treatment creates a risk of biological exposure. While naloxone is just a nasal spray, there's still a risk of blood contact or other contact to unknown pathogens when you're coming into close contact with a stranger in medical distress.

Thirdly, there's a risk of violent reaction to naloxone: It can trigger withdrawal symptoms in addicts, which can lead to unpredictable behaviour.

These risks aren't generally all that high - by most credible accounts, for example, the discourse surrounding serious medical consequences of inadvertent fentanyl exposure is more myth than reality - but the risks are real nonetheless, and so fall within the scope of occupational health and safety legislation, and need to be managed.

So appropriate training and resources for employees who might have to administer naloxone typically includes recognition of overdoses, steps to take to assess the situation and environmental hazards, PPE requirements, and just generally how to keep oneself safe in those situations, among other things.

What If An Employee Administers Naloxone Against Policy?

So, in my view, an employer who expects that some employees may be in a position to administer naloxone on the job must have a policy ensuring that only properly-trained employees will do so.

Raising a question: What if an employee does so in contravention of policy, while on the job?

The answer to that is that, strictly speaking, it's disciplinable as a breach of policy. Assuming that it's done in good faith and under reasonable circumstances, it's unlikely to be viewed objectively as severe misconduct. If it's not good faith and reasonable, that might be more severe.

And if you fail to undertake appropriate safety precautions and experience some sort of injury, that's your own problem. (WCB does have policies about Good Samaritan injuries, which may or may not apply.)

These are really the point of the policy: The expectations of and upon the employer are that, if you're going to do something in the course of your employment, you should be trained to do it properly and safely. If the employer hasn't trained you to do a task, the expectation should be that you won't do it...and if you do it anyways, you'd best be sure you're getting it right, because you're responsible if something bad happens. The employer has discharged its obligations by telling you "Just don't."

(That doesn't mean that an employer can create a policy and then wink at you while promising not to enforce it. But I'd be super surprised if a City of Edmonton employee administered naloxone, saved a life, and got meaningfully disciplined for it.)

The Ontario Law

Ontario passed an amendment to its OHS legislation, to be effective as of June 2023, requiring certain businesses to keep OHS kits on hand - if they are aware (or ought reasonably to be aware) of a risk of a worker having an opioid overdose at the workplace.

Affected workplaces are required not only to maintain naloxone kits, but also to ensure that there's a worker 'in charge' of the kit who is trained to use it, including training on how to recognize signs of an overdose; to administer naloxone; and to be aware of potential hazards associated with administering naloxone.

It's a new and interesting piece of legislation, specifically targeting worker safety - not just the safety of workers administering naloxone, but the safety of workers at risk of opioid overdoses. (NB: The framing of the law is that it's only about risk of worker overdoses, and it says nothing about overdoses by customers or members of the public on the work site. Within the OHS regime, that makes sense, but as a public health measure, less so.)

To be honest, I find this treatment to be unusual: It will be extraordinarily rare that the work itself puts somebody at risk of an opioid overdose, and so when we talk about worker overdoses in workplaces, we're largely talking about drug abuse in the workplace.

Though I'm told that there are industries where worker overdoses are more common than one would hope.

The Need for a Policy

From my experience talking to people with better public health bona fides than I have, it seems like there's consensus that more businesses should keep naloxone kits around, particularly in certain high risk areas.

And it may seem innocuous enough to just bring in a kit informally, if only because it doesn't require any special training for members of the general public. But when it's your employees doing it, you have an obligation to set expectations regarding safe practices.

The policy needn't be complex. In reality, the training is the hard part, but there are plenty of credible options out there for naloxone training. Once you've picked such a training regime, the policy mainly needs to require people to keep the training reasonably up-to-date, and to follow their training in the event of a suspected opioid overdose.

• Only people with up-to-date training can administer naloxone in the workplace;
• Naloxone should be administered if and only if someone in medical distress is showing signs of an opioid overdose;
• Naloxone administration and follow-up care should be undertaken in accordance with the training received.

You would also want to continuously monitor the state of affairs in respect of naloxone's public availability: So long as the prevailing data from authoritative sources like Health Canada are that naloxone is safe enough to be administered by people without training, then an employer should be pretty safe telling employees who have received credible training that they can, under appropriate circumstances, use that training. But if the government recommendations were to change, then the reasonableness of the policy might as well.

The City's Policy

I haven't reviewed the City's policy myself, but the CBC article suggests that only a very small number of employees are permitted to administer naloxone.

On that basis, it doesn't seem to me that the policy is the problem - there absolutely NEEDS to be a policy if you expect that there might be scenarios where a person driving a City of Edmonton truck gets out and administers naloxone to a person. (This obviously isn't just about OHS, but about enhancing public safety - which is certainly something we hope our municipal government would do.)

But the administration of the policy is another question: Why are only 170 employees approved?

The training isn't expensive - many credible sources offer it for free - and it's not particularly time-consuming, either. So with a city with such a large workforce that's out in the public sphere on a regularly basis, I don't see a compelling reason why this workforce shouldn't be able to provide a significant line of defence against the opioid overdose crisis.

Conclusion

While Ms. Coderre, in the article, suggests against employers authorizing non-medical employees to administer naloxone, I broadly disagree. It's a strong lawyer's instinct, but it's counterbalanced by several factors here:

Firstly, the literature on the safety of naloxone is abundant, authoritative, and sufficiently so to ground reasonable reliance by employers.

Secondly, regulatory changes have removed restrictions on possessing and administering naloxone, which make it unlike other drugs.

Thirdly, people generally don't need authorization - from their employer or otherwise - to acquire or administer it, which means that, if I'm an employer, then for all I know my employees already have naloxone kits with them and may intend to use them under appropriate work-related circumstances.

Employers have three options: Have a policy that sometimes allows its usage; have a policy that absolutely prohibits naloxone; or don't have a policy at all. Not having a policy doesn't necessarily mean that you're not responsible for circumstances where naloxone is administered; it just means that you're not exercising control. An outright prohibition is probably tough to justify - both morally and from an OHS standpoint. So the only reasonable option, for an employer with a reasonable probability that an employee may have cause to administer naloxone in work-related contexts, is to implement a policy dictating when and how it should be done.

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Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.