EEOC Issues Guidance on Employee Opioid Use and the Americans With Disabilities Act

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP

Amid the United States’ growing opioid crisis, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance on employers’ obligations under the Americans with Disabilities Act (“ADA”) regarding job applicants or employees who legally use opioid medications or who have a history of addiction to opioids.  The guidance is not new policy; rather, the guidance applies principles already established under both the ADA and previously-issued EEOC guidance.

The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine, as well as illegal drugs like heroin.  Opioids also include buprenorphine and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment (“MAT”) program.

Job Disqualification for Opioid Use

The guidance clarifies that employers can continue to disqualify (i.e., refuse to hire, discipline, terminate) job applicants and employees based on illegal use of opioids.  The employee’s use of an opioid, including opioids taken as directed in a MAT program, is considered legal if it is supported by a valid prescription.  Employers are also permitted to disqualify applicants and employees for their opioid use if required by another federal law.

However, if (1) the opioid use is legal and (2) the applicant or employee is not disqualified from employment by federal law, then employers may not automatically disqualify the applicant or employee for opioid use “without considering if there is a way for [them] to do the job safely and effectively.”  In determining job safety, the EEOC offers the following guidance:

  1. The employer must have objective evidence that an applicant or employee cannot do the job or poses a significant safety risk, even with a reasonable accommodation.
  2. To disqualify an applicant or employee from the job for safety reasons, the evidence must show they pose a “significant risk of substantial harm.” The applicant or employee cannot be disqualified because of “remote or speculative risk.”
  3. To make sure there is enough objective evidence regarding the ability to safely and effectively perform the job, the employer is permitted to ask the applicant or employee to undergo a medical evaluation.

Reasonable Accommodations for Opioid Addiction

The guidance also clarifies that the ADA may require employers to reasonably accommodate employees who are currently using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally.  The guidance provides the following scenarios where the employer might be required to provide a reasonable accommodation for legal opioid use:

  1. Underlying Medical Condition. If the applicant or employee takes prescription opioids to treat pain, the medical condition causing pain may qualify as a “disability” under the ADA requiring a reasonable accommodation.
  2. Side Effects of Prescription Opioids. If the applicant or employee takes prescription opioids that have side effects that interfere with everyday functioning, the medical conditions related to the side effects may qualify as “disabilities” under the ADA requiring a reasonable accommodation.
  3. Opioid Addiction. If the applicant or employee has an opioid addiction (sometimes called “opioid use disorder” or “OUD”), which is itself a diagnosable medical condition that can be an ADA disability, the employer may be required to provide a reasonable accommodation.  However, even if the applicant or employee has OUD, the employer may deny an accommodation if the opioid use is illegal.
  4. Medical Conditions Related to Opioid Addiction. If the employee has a medical condition associated with opioid addiction, such as major depression or post-traumatic stress disorder, the employer may be required to provide a reasonable accommodation.
  5. Recovery From Opioid Addiction. An applicant or employee who had a past disability may be entitled to a reasonable accommodation, including, for example, an altered work schedule to enable the applicant or employee to attend a support group meeting or therapy session that would help prevent relapse.

When evaluating possible accommodations for conditions related to opioid use, employers should use the same analysis under the ADA for other disabilities.  A reasonable accommodation is some type of change in the way things are normally done at work, such as a different break or work schedule (e.g., scheduling work around treatment), a change in shift assignment, or a temporary transfer to another position.  An employer might be required to hold an employee’s job open while the employer takes leave for treatment or recovery.  Like with any accommodation under the ADA, however, employers never have to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, or pay for work that is not performed.  As to opioid-use specifically, employers do not have to excuse illegal drug use on the job as an accommodation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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