New EEOC Guidance on Opioid Addiction and Employment

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On August 5, 2020, the Equal Employment Opportunity Commission (EEOC) issued two new guidance documents addressing the opioid[1] epidemic and its impact on the workplace. The first guidance, “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” answers a series of questions regarding Americans with Disabilities Act (ADA) protections for employees legally using opioid medications or who have a history of addiction to opioids. The second guidance is called “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.”

Significantly, the guidance states that opioid addiction (opioid use disorder, or OUD) is a diagnosable condition that likely qualifies as an ADA disability. Therefore, employees who are seeking treatment for opioid addiction or who have a history of opioid addiction may be entitled to an ADA accommodation.  In addition, if an employee is taking prescription opioids legally, they may be entitled to an accommodation if the underlying medical condition causing the pain is a disability, or if the opioid medication interferes with the employee’s everyday functioning.

Accommodations might include a temporary job transfer, an altered schedule, or temporary leave to attend support group meetings or therapy sessions to help avoid relapse for individuals recovering from opioid addiction. An employer also might be required to hold an employee’s job for them while they seek treatment. As with any ADA accommodation, an employer never has to lower production or performance standards, eliminate essential functions of a job, or pay for work that is not performed. Employers can continue to fire, discipline, or not hire employees who illegally use opioids or disqualify them from positions if required by federal law.

This guidance clarifies employers’ obligations to employees who legally take opioids and those with a history of addiction to opioids.

[1] “Opioids” include prescription drugs such as codeine, morphine, oxycodone (OxyContin®, Percodan®, Percocet®), hydrocodone (Vicodin®, Lortab®, Lorcet®), and meperidine (Demerol®), as well as illegal drugs like heroin. They also include buprenorphine (Suboxone® or Subutex®) and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment program.

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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