To Give or Not to Give: The Provision of Anti-Overdose Medication in the Workplace

By: Angela R. Cabral and Chelsea R. Avent, SLOAN SAKAI YEUNG & WONG LLP

SYNTHETIC OPIOIDS, SUCH AS FENTANYL, ARE RESPONSIBLE for thousands of deaths in California every year.¹ Nationwide, deaths due to overdose rose 30% between 2019 and 2020 and another 15% between 2020 and 2021, with synthetic opioids being the primary driver of the increased deaths.²

Due to increased awareness of the sobering scale of the opioid epidemic, many state lawmakers are looking for legislative solutions to increase the availability of the life-saving medication naloxone to prevent opioid overdose deaths. Several states recently passed or proposed legislation that reflect this desire to be more active in meeting this crisis, and California employers should be prepared to meet this changing legal landscape.

What is Naloxone?

Naloxone, commonly sold under the brand name Narcan, is a life-saving medication that is most often administered through a nasal spray to reverse an opioid overdose, such as those resulting from the use of heroin, fentanyl, and prescription opioid medication.³ According to the California Department of Public Health (CDPH), naloxone is not addictive, works almost immediately, has very few side effects, and has no effect if opioids are not found in a person’s system.⁴

In July 2023, the U.S. Food and Drug Administration (FDA) approved Narcan as an over-the-counter medication making it so anyone may purchase, distribute, and administer Narcan without a prescription or license.⁵ In California, all other dosages and types of naloxone (such as injectable or intramuscular naloxone) are prescription only, and therefore require a standing order to distribute and administer.⁶

Recent Laws Requiring Certain Industry Employers To Provide Naloxone

In the last few years, several new laws have been introduced in California that require employers in certain industries to have Narcan (or another naloxone product) available for use and/or distribution. For instance, the Campus Opioid Safety Act, which took effect January 1, 2023, requires public universities to distribute dosages of opioid overdose reversal medication (such as Narcan) through campus health centers.⁷ Public school districts are similarly required to provide naloxone to school nurses or volunteer personnel for emergency use.⁸ Licensed alcohol and drug treatment programs are required to have naloxone on site.⁹

In October 2023, California passed a bill that took effect on January 1, 2024, that requires stadiums, concert venues, and amusement parks to maintain unexpired doses of naloxone on their premises at all times and to ensure that at least two employees are aware of the medicine’s location.¹⁰ Additionally, California lawmakers introduced a new bill in January 2024 that would further amend this new statute to provide that the naloxone medication at these venues be “easily accessible and its location widely known.”¹¹

There are indications that more widespread legal mandates regarding the employer provision of naloxone are on the horizon. On January 30, 2024, State Assembly Member Matt Haney introduced a bill that would require the California Occupational Safety and Health Standards Board to revise a regulation on first aid materials to mandate that first aid kits in the workplace contain naloxone and instructions for its use.¹² These state efforts to provide expanded access to naloxone echo federal efforts. In March 2024, President Joseph R. Biden launched the White House Challenge to Save Lives from Overdose, which called for all public and private organizations and businesses to commit to training employees on opioid overdose reversal medications, to keep such medications in first aid kits, and to distribute such medications to employees and customers.¹³

Legal Protections for the Voluntary Administration or Distribution of Naloxone

Employers likely have concerns about potential liability related to their employees administering naloxone to those experiencing an overdose, including to members of the public, patrons, or other employees. However, there are several laws in place that protect those who voluntarily use or distribute naloxone.

Since 2017, CDPH has had a statewide standing order that allows for the distribution of naloxone and for its administration during an overdose by organizations that have agreed to specified terms and conditions.¹⁴ Since the FDA’s approval of Narcan as an over-the-counter medication, the standing order is no longer required for the distribution, use, or administration of Narcan.¹⁵

The standing order is still applicable to other forms of naloxone (i.e., intramuscular or injectable naloxone), and provides that organizations that do not employ a medical provider may distribute naloxone to those who have completed a compliant opioid overdose prevention and treatment training program. Pursuant to the Drug Overdose Treatment Liability Law, licensed health care providers and organizations that are otherwise compliant with the standing order are immune from civil or criminal liability for possession or distribution of naloxone.¹⁶ Individuals who are not licensed to administer naloxone, but who have been trained pursuant to the standing order’s training standards, cannot be held liable civilly or criminally for administering naloxone so long as they use reasonable care and administer it in good faith and not for compensation to a person suspected of experiencing an overdose.¹⁷

Additional laws protect those who voluntarily administer Narcan to those experiencing an emergency overdose. For instance, California’s Good Samaritan Law states that a person cannot be liable for any civil damages that result from his or her providing of emergency care if (1) the person acted in good faith, and not for compensation, (2) the person provided either emergency medical care or nonmedical care, and (3) the care was provided at the scene of an emergency.¹⁸

Further, effective January 1, 2024, California added a section to the Health and Safety Code that specifically addresses “liability for opioid antagonist administration.”¹⁹ That section states that any person who, in good faith and not for compensation, renders emergency treatment at the scene of an opioid overdose or suspected overdose by administering an opioid antagonist such as Narcan, “shall not be liable for civil damages resulting from an act or omission related to the rendering of the emergency treatment.”²⁰ Further, the section removes civil liability specifically for someone who furnishes an opioid antagonist to someone else for use at the scene of an actual or suspected opioid overdose.²¹ Lastly, this section clarifies that individuals are not “rendering emergency medical care or furnishing opioid antagonist for compensation” if they receive compensation as a result of their unrelated employment—meaning an employee who administers Narcan during their workday is not liable for civil damages provided the employee complies with the section’s other requirements.²² However, the section states that liability may still attach to an act or omission related to the emergency treatment that constitutes gross negligence or willful or wanton misconduct.²³

Should Employers Provide Narcan to Employees?

Employers who are not already required to make Narcan/naloxone available to employees in the workplace may want to consider doing so for several reasons. First and foremost, it is undisputed that the timely administration of naloxone saves lives by reversing an opioid overdose. Second, there appears to be a legislative push at both the state and federal level towards broad requirements to make Narcan and related training available in the workplace. Third, having life-saving medication on hand may help employers avoid liability or other concerns stemming from an opioid overdose occurring on employer property.

Employers should consider the following questions when determining whether a Narcan policy or program is needed, desirable, and/or feasible for their worksite.

• Do you have staff willing to administer Narcan in an emergency response situation?
• Does your workplace offer other first aid or emergency response interventions (first aid kits, defibrillators, trained first aid providers), and, if so, can Narcan be added?
• Are the risks for opioid overdose greater in your geographic location, in your industry, or among occupations at your workplace? Has there been evidence of opioid drug use onsite (such as finding drugs, needles, or other paraphernalia)?
• Does your workplace have frequent visitors, clients, patients, or other members of the public that may be at increased risk of opioid overdose?

If an employer desires to make naloxone available in the workplace after consideration of the issues above, some best practices should be followed. First, most employers should stock Narcan—as opposed to other forms of naloxone—given that it has been approved for over-the-counter use and does not require compliance with California’s standing order to distribute or administer.

Second, employers should either provide training, or require that employees receive outside training, prior to authorizing the use of their employer’s Narcan. The training should provide, at a minimum, instruction in all of the following areas: the causes of an opiate overdose, how to recognize an opioid overdose, how and when
to contact appropriate emergency medical services, and how to administer an opioid antagonist. CDPH provides several training resources and videos on these topics for employer use.²⁴ Employers should develop a plan to purchase and store Narcan²⁵ and ensure that Narcan is replaced when it expires. Additional considerations for establishing a program include records management, including maintaining a detailed log, chart, and/or spreadsheet reflecting any instances where Narcan was administered, including the provider, recipient, date/time of usage, symptoms observed at the scene, and related objective information pertaining to administration of the medication.

Third, employers should develop a written policy detailing the specific training requirements the employee must meet before being authorized to administer Narcan, the steps to follow prior to and following the administration of the medication, and any related emergency response requirements. The written policy should incorporate the California Health and Safety Code standards that render an individual’s administration of Narcan immune from civil liability, such as reiterating that an employee’s administration of Narcan must be in good faith, not for separate compensation, and provided only at the scene of an emergency to treat a suspected opioid overdose.

By following the steps outlined above, an employer can best balance the goal of providing life-saving medication when needed, while not exposing itself—or its employees—to the risk of civil and/or criminal liability. 

Angela R. Cabral, senior counsel at Sloan Sakai Yeung & Wong LLP, provides advice and counsel to public and private sector employers on a wide range of labor and employment law matters, such as leaves of absence, performance management, employee discipline, personnel policies, and responding to employee complaints. She may be contacted at acabral@sloansakai.com.

Chelsea R. Avent is an associate at Sloan Sakai Yeung & Wong LLP, specializing in the representation and defense of public agencies on a wide range of labor and employment matters, including litigation, administrative employee discipline cases, and unfair labor practice proceedings. She may be contacted at cavent@sloansakai.com.

Related Content

1. See California Department of Public Health, California Overdose Surveillance Dashboard (Apr. 19, 2022). 2. See Center for Disease Control, U.S. Overdose Deaths In 2021 Increased Half as Much as in 2020 – But Are Still Up 15% (May 11, 2022). 3. See California Department of Public Health, Substance and Addiction Prevention Branchg, Stop Opioid Overdose with Naloxone (May 20, 2024). 4. Id. 5. U.S. Food and Drug Administration, FDA Approves Second Over-the-Counter Naloxone Nasal Spray Product (July 28, 2023). 6. See California Department of Public Health, Statewide Standing Order for Naloxone (Nov. 14, 2023). 7. 2021 Bill Text CA S.B. 367. 8. Cal. Educ. Code § 49414.3. 9. Cal. Health & Safety Code § 11834.26(f). 10. Cal. Health & Safety Code §§ 11870, 11871. 11. 2023 Bill Text CA A.B. 1996. 12. 2023 Bill Text CA A.B. 1976 (to add Cal. Lab, Code § 6723). 13. The White House, FACT SHEET: Biden-Harris Administration Launches the White House Challenge to Save Lives from Overdose, (Mar. 13, 2024). 14. California Dep’t of Public Health, Statewide Standing Order for Naloxone, supra note 6. 15. Id. 16. Cal. Civ. Code § 1714.22. 17. Cal. Civ. Code § 1714.22(f). 18. Cal. Health & Safety Code §1799.102. Pursuant to this statute, the “scene of an emergency” does not include emergency departments and other places where medical care is usually offered. 19. Cal. Health & Safety Code §1799.113. 20. Cal. Health & Safety Code §1799.113(a)(1). 21. Cal. Health & Safety Code §1799.113(a)(2). 22. Cal. Health & Safety Code §1799.113(c)(1). 23. Cal. Health & Safety Code §1799.113(b). 24. See, e.g., California Department of Public Health, Administering Naloxone (Aug. 30, 2018). This video equips public health agencies, community organizations, friends, family members and others with the knowledge and skills needed to prevent opioid-related deaths by using naloxone. The 11-minute training video includes a six-point checklist on how to recognize when a person is overdosing and demonstrates how to dispense naloxone and provide post-overdose care. 25. The Department of Health Care Services created the Naloxone Distribution Project (NDP) to combat opioid overdose-related deaths throughout California through the provision of free naloxone. Effective May 6, 2024, entities participating in the NDP will receive either generic naloxone nasal spray or Narcan naloxone nasal spray. Eligible entities include first responders, schools and universities, county public and behavioral health departments, law enforcement, local city agencies, community organizations, and others. See California Department of Health Care Services, Naloxone Distribution Project (May 6, 2024).