EEOC issues guidance on opioids and the Americans with Disabilities Act

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It is no secret that America is in the midst of an opioid addiction crisis. It has been for quite awhile. A recent study revealed that in 2018 there were 128 deaths from opioid overdose per day in United States. A startling 21 to 29 percent of patients who are prescribed opioids (fentanyl, oxycodone, codeine, etc.) misuse them. According to the Centers for Disease Control and Prevention, there were more than 2.9 billion opioid prescriptions issued in the United States between 2006 and 2018. In 2012 alone, there were more than 81 prescriptions issued per every 100 persons in this country. The CDC has estimated that the “economic burden” of prescription opioid misuse in the United States is $78.5 billion per year.

What does all of this mean for employers? It means that it is very likely this sensitive – and difficult – issue will impact one or more of your employees. There are two situations related to opioids that often arise in the workplace. First, the prevalence of opioid addiction and abuse means it is possible that your company will, at some point, have an employee who abuses or is addicted to opioids. Second, the rising concern about opioid addiction often causes employers to be confused as to how to address an employee who is taking opioids, even if they are doing so responsibly and pursuant to a valid prescription.

Of course, the first and foremost concern should always be the health and well-being of every person in your workplace. Employers also need to be aware of their legal obligations and the rights of their employees concerning this issue. This is health crisis. Therefore, it should come as no surprise that, in the employment context, it implicates the rights and duties set forth in the federal Americans with Disabilities Act.

On August 5, 2020, the U.S. Equal Employment Opportunity Commission issued new guidance to help employers understand rights and obligations under the ADA regarding employee opioid use. This guidance does not create new law. Rather, it is an attempt by the EEOC to communicate and clarify employee rights under existing law.

The ADA and opioid addiction

The EEOC’s guidance highlights a critically important piece of information: opioid addiction is a diagnosable medical disorder. It is sometimes referred to as “opioid use disorder” or “OUD.” The EEOC cautions employers against making the all-too-common mistake of equating an employee with addiction with an employee who is currently using illegal drugs or reporting to work under the influence. They are not one and the same. An employee can have an opioid addiction without being a current user of opioids or other illegal drugs.

If an employee is diagnosed with OUD and that condition substantially interferes with a major life activity, then it is a “disability” for purposes of the ADA. An employee who has an addiction rising to the level of a “disability” may be entitled to a reasonable accommodation in order to perform their essential job duties while being treated for addiction. Treatment may include attending support group meetings or individual or group counseling. Altering an employee’s work schedule so they can attend these sessions may be a reasonable accommodation under the ADA.

Another common treatment for opioid addiction referenced in the EEOC’s guidance is participation in a medication-assisted treatment (“MAT”) program, which uses behavioral therapy and medication to treat addiction. Sometimes, these programs use opioids, such as methadone (a synthetic opioid), to treat symptoms of withdrawal. An employee might need an accommodation to attend therapy, but they might also need an accommodation to be absent from work for periods in which medication limits their ability to be fully functioning.

Because an employee in an MAT program might be prescribed opioids, that employee may test positive for opioids during employment. Ideally, the employer will never know about such a positive test because the employee would provide a prescription and explanation to the medical review officer who would then not disclose the positive result to the employer. As we all know, “ideal” does not always occur. Employers should not presume that an employee diagnosed with OUD is engaging in illegal drug use just because they test positive for opioids. If such an employee tests positive, employers must engage in the ADA’s interactive process to fully understand the situation before taking adverse action.

On the other hand, the EEOC’s guidance reaffirms the well-settled rule that an employer may discipline an employee, up to and including termination of employment, for current illegal drug use. This includes the illegal use of prescription medication. An employee participating in an MAT program involving opioids should be under the care of a physician and have a valid prescription. If an employee tests positive for opioids without having a valid prescription, that employee can be disciplined.

The EEOC advises that there are other medical conditions, besides OUD, that are related to addiction. Depression and post-traumatic stress disorder (“PTSD”) can be associated with addiction and can be “disabilities” under the ADA. If an employee experiences these conditions and needs an accommodation, employers must go through the interactive process to determine whether there exists a reasonable accommodation that would allow the employee to perform job duties.

The ADA and lawful opioid use

Many employees have been and will continue to be prescribed opioids to address various medical conditions. Many of these employees will take the opioids lawfully and responsibly as instructed by their health care provider. As such, employers must refrain from jumping to conclusions if they learn an employee is taking opioids. In its guidance, the EEOC reminds employers to “give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use.” Remember, this includes applicants subjected to drug testing.

An employee or applicant may be entitled to a reasonable accommodation if they have an ADA-covered “disability” that is treated with prescription opioids. It may be reasonable to accommodate the underlying disability for which the employee is taking a prescription drug. It may be reasonable to accommodate the impacts of the prescription drugs themselves. The EEOC notes that an employee may need a reasonable accommodation, such as an altered work schedule or a short leave of absence, if their medication interferes with their everyday functioning.

And now we’re back into familiar territory: what is reasonable? The EEOC guidance focuses on what is not reasonable. Specifically, it states that “an employer never has to lower production or performance standards, eliminate essential job functions (fundamental duties) of a job, [or] pay for work that is not performed” in order to accommodate an employee with a disability. In other words, these types of accommodations are not reasonable.

This illustrates the balance that the reasonableness requirement attempts to reach regarding accommodations for employees with a disability. Allowing an employee to change shifts or be absent for a few hours to receive treatment are probably reasonable accommodations. Reducing performance standards or permanently excusing an employee from performing essential duties of their position are likely not reasonable. Nonetheless, the reasonableness of an accommodation is a fact-intensiveness inquiry dependent on the nature of the employee’s disability, the essential functions of their job, and the burdens on the employer to provide an accommodation.

In light of the EEOC’s guidance, employers should revisit their policies, procedures and everyday practices. Policies should clearly communicate to employees the process for requesting reasonable accommodations. They should also ensure employees that all medical information will be kept confidential – this is true for medical information, but especially important with respect to sensitive information such as drug use and addiction. Employers should also train their managers and front-line supervisors to know how to respond, and to whom employees should be directed, when they ask for a reasonable accommodation for opioid-related issues. All of this will put employers in the best position to comply with all the requirements under the ADA.

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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