Opioid Use and the ADA: EEOC Issues New Guidance

Arent Fox

Arent Fox

On August 5, the EEOC released new technical assistance for employees that addresses the interplay between the Americans with Disabilities Act and opioid use.

The document, entitled Use and Misuse of Codeine, Oxycodone, and Other Opioids: Information for Employees, explains that employees and applicants who lawfully use opioid medication, are being treated for opioid addiction, are receiving Medication Assisted Treatment, or have recovered from opioid addiction, fall within the ADA’s protections. In addition, the document answers questions about reasonable accommodations that may be available to individuals who lawfully use opioids, and what to do if an employer has concerns about their ability to safely perform their job.

The EEOC also issued guidance for health care providers, entitled How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed, which overlaps the first document to a considerable degree, with a medical perspective.

This Alert discusses what you should know about the first document.

Job Disqualification

“If you are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally,” the Guidance begins, “under the Americans with Disabilities Act (ADA) you may have the right to get reasonable accommodations and other protections that can help you keep your job.”

That means that employees may not automatically be disqualified for a job because they use, or once used, opioids.

According to the EEOC, the ADA allows employers to fire or take other adverse actions against individuals based on their illegal opioid use, even if they don’t have performance or safety problems. Also, employers may disqualify employees if another federal law so requires.

But, absent a federal disqualification, if the employee or applicant lawfully uses opioids, an employer may not automatically disqualify the individual because he or she uses opioids, without considering if there’s a way for the individual to safely and effectively do their job.

Likewise for applicants and employees who take an opioid medication through a Medication Assisted Treatment program. Those individuals have a valid prescription and their use of the medication is legal. Thus, the ADA, prohibits employers from denying them a job or firing them for their opioid use, unless they cannot do the job safely and effectively, or another federal law disqualifies them.

The ADA, of course, permits employers to require drug tests. The EEOC advises, however, that employers should give anyone subject to the tests an opportunity to submit information about lawful drug use that may cause a positive test result. An employer may do this by asking, before the test, whether the employee takes medication that could cause a positive result. Or the employer may ask everyone who tests positive for an explanation.

Performance and Safety Issues

An employer may believe that an employee’s or applicant’s opioid use, opioid use history, or treatment for opioid addiction could interfere with his or her safe and effective job performance. But, if the individual is lawfully using the drug and isn’t federally disqualified, he or she may be entitled to reasonable accommodation.

A reasonable accommodation is a change in the way that 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. Those are just examples. Individuals may request, and employers may suggest, other modifications or changes. However, an employer never has to lower production or performance standards, eliminate a job’s essential functions, pay for work that isn’t performed, or excuse illegal drug use on the job as a reasonable accommodation.

The reasonable accommodation requirement applies to individuals who take prescription opioids to treat pain. According to the EEOC, those individuals may be able to get a reasonable accommodation if the pain-inducing medical condition is an ADA “disability”. Many conditions that cause pain significant enough for a doctor to prescribe opioids will qualify.

Employees and applicants may be entitled a reasonable accommodation because they are addicted to opioids. According to the EEOC, opioid addiction is itself a diagnosable medical condition that can be an ADA disability. But an employer may deny an accommodation if the employee or applicant is using opioids illegally, even if he or she is addicted.

What if the employee or applicant has recovered from opioid addiction, but still needs a reasonable accommodation to avoid relapse? According to the EEOC, those individuals may be entitled to a reasonable accommodation needed due to a disability that they once had. Such accommodations could include an altered schedule to allow the individual to attend a support group meeting or therapy sessions that will help him or her to avoid a relapse.

May employees and applicants be entitled to a reasonable accommodation for a medical condition related to opioid addiction? “Yes,” says the EEOC, if the condition is a disability, such as major depression and post-traumatic stress disorder.
Employers and employees may disagree on whether an employee or applicant can perform a job safely. If that happens, according to the EEOC, assuming that the individual isn’t federally disqualified for the job or using opioids illegally, the employer must have “objective evidence” that the employee or applicant “can’t do the job or poses a significant safety risk, even with reasonable accommodation.”

Employers may not deny, or remove someone from, a job based upon “remote or speculative risks.” Of course, to ensure that it has enough objective evidence about what an employee or applicant can safely and effectively do, employers may request a medical evaluation.

Perhaps an individual with an opioid problem can’t now perform his or her job safely or reliably, but may be able to in the future. In those circumstances, the EEOC explains, the employer might be required to hold the employee’s job while he or she takes leave for treatment or recovery. If an employee needs leave because of an ADA disability, the employer should allow the employee to use sick and accrued leave like anyone else, unless the employee is using opioids illegally.

Even if no sick or other approved leave is available, an employee may be entitled to unpaid leave (1) under the FMLA; or (2) as an ADA reasonable accommodation if the employee needs time off due to a disability, is not using drugs illegally, and is expected to recover their ability to do their job.

Employees permanently unable to do their regular job, due to an opioid-related disability, may ask their employer to reassign them to an available job, at an equivalent level or below, that they can perform.

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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