The EEOC has issued new guidance about the rights of employees under the Americans with Disabilities Act as it relates to an employee’s opioid use, addiction, or past addiction. The guidance applies to use of a variety of opioids, whether they are prescription drugs, illegal drugs, or substances that can be prescribed to help treat opioid addiction, such as those used in connection medication-assisted treatment programs.
The EEOC emphasizes that the ADA does not prohibit employers from terminating employees based on illegal use of opioids or if federal law requires disqualification on this basis.
However, the EEOC states that employees who aren’t disqualified by federal law and whose opioid use is legal can’t be automatically terminated because of opioid use alone. Instead, the employer must consider whether the employee can perform the job safely and effectively and must consider the availability of potential accommodations. The EEOC also cautions that opioid addiction (sometimes called “opioid use disorder” or “OUD”) can itself qualify as a disability under the ADA.
The EEOC is clear that employers do not need to lower production standards or performance standards, reduce safety standards, or eliminate essential job functions in providing reasonable accommodations. However, if reasonable accommodations would permit an employee to perform the job’s essential functions, the employer must provide one in most circumstances.
Specific to opioid use, the EEOC notes that appropriate accommodations could include things like modified schedules (to schedule around treatment, group meetings, or therapy sessions), changes in shift assignments, temporary transfers to other positions, and more. In addition to these options, the EEOC also notes that leaves to seek substance abuse treatment may be a reasonable accommodation, depending on the circumstances.
Of course, standard caveats apply here. This EEOC guidance is not binding and could be rejected in court. In addition, this guidance doesn’t account for federal medical leave laws or other state and local laws governing disabilities and employee accommodations, which may provide for different standards. But the document itself is worth a read, as it discusses an issue that is at the forefront of the mind for many communities across the country.