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EEOC Issues Guidance Clarifying When Opioid Users are Protected From Disability Discrimination Under the ADA (US)

Opioid abuse is widespread in America and the opioid epidemic impacts people from all walks of life, which presents unique challenges for employers who want to limit the potentially adverse effects opioid use may have on their employees and their workplaces. Given the severity of the crisis, it is tempting for employers to want to implement strict policies that discourage and/or punish opioid use or to refuse to accommodate certain opioid dependency-related requests in an attempt to eliminate the perceived risks associated with opioid use from their work environment. However, it is important for employers to be aware of and adhere to their obligations under the law. The U.S. Equal Employment Opportunity Commission (“EEOC”) recently provided some insight regarding federal employment protections related to opioid use, and clarified employers’ obligations to accommodate an employee’s opioid use and treatment for opioid addiction under federal law.

On August 5, 2020, the EEOC released two new technical assistance documents—one directed to employees and one to health care providers—that address concerns about the employment provisions of the Americans with Disabilities Act (“ADA”) and the opioid epidemic. The guidance defines “opioids” as prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine, as well as illegal drugs such as heroin. The information provided in the guidance is not meant to create new policy, but rather applies principles already established in the ADA’s statutory and regulatory provisions, as well as previously issued guidance, to the context of opioid use and addiction.

The first document, Use of Codeine, Oxycodone, and Other Opioids: Information for Employees, makes clear that current illegal drug use is not a covered disability, but explains that the following individuals are protected from disability discrimination under the ADA:

  • individuals who are lawfully using opioid medication,
  • individuals who are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT), and
  • individuals who have recovered from their addiction.

In addition, the EEOC’s guidance answers questions about reasonable accommodations that may be available to employees who are currently using opioids legally, as well as what to do if an employer has concerns about the employee’s ability to perform his or her job safely. The guidance defines a reasonable accommodation as “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.”

Notably, the guidance explains that employees with opioid addiction (sometimes called “opioid use disorder” or “OUD”) may be eligible for a reasonable accommodation for their disorder because the opioid addiction itself is “a diagnosable medical condition that can be an ADA disability.” However, employers may deny an employee’s request for an accommodation if he or she is using opioids illegally, even if that employee has been diagnosed with OUD. Further, an employee who had a past addiction to opioids may be eligible for a reasonable accommodation in relation to that past addiction. For example, such employees may qualify for an altered work schedule, as an accommodation, so they can attend support group meetings or therapy sessions that help them avoid relapse.

Employees who need an opioid-related reasonable accommodation are instructed to simply ask for one. As with any other request for an accommodation under the ADA, as part of the ADA’s interactive process,  employers may ask the employee to put the request in writing or to fill out a form, and to describe how the employee’s work is affected by the disability. Further, employers may request that the employee submit a letter from the employee’s health care provider that indicates the employee has an ADA-defined disability and explains why the employee needs a reasonable accommodation. Employers are required to provide qualifying employees with a reasonable accommodation if the accommodation would allow the employee to perform the job safely and effectively, and does not involve significant difficulty or expense. However, “an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.”

The guidance also addresses how employers should handle the situation if an employee’s drug test comes back positive because they are lawfully using opioid medications. Specifically, the EEOC explains that an employer should 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. Employers may do this by asking, before the test is administered, whether the person takes medication that could cause a positive result, and may ask all persons who test positive for an explanation.

The second document, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” informs health care providers about their patients’ legal rights in the workplace. Medical providers are often essential participants in the interactive process between employers and workers as employers attempt to understand the employee’s condition and potential need for reasonable accommodation, so this guidance is meant to provide health care providers with helpful information and instruction regarding how they can assist in that process. In addition to describing the coverage limits under the ADA, the EEOC provides guidance to health care workers seeking to provide documentation of covered disabilities on their patients’ behalf.

Although these guidance documents do not have the force or effect of law or bind the public in any way, the goal of the documents is to provide clarity to the public regarding existing requirements under the law. Although the documents are not specifically directed at employers, they nonetheless provide employers with helpful insight into the EEOC’s position and expectations regarding the treatment of employees with opioid-related disabilities. Employers who have concerns about an employee due to their current or former opioid usage should consult with an attorney before making determinations about requests for accommodations or other employment decisions to ensure they are acting in accordance with this guidance and other applicable laws. Moreover, employers should make sure that they educate themselves on the legality of certain drugs and should review their drug testing policies to ensure that they are up-to-date and legally compliant.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 225

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About this Author

Melissa Legault Labor & Employment Attorney Squire Patton Boggs Phoenix, AZ
Associate

Melissa Legault is an associate in the Phoenix office, where she focuses her practice on labor and employment matters. Melissa assists employers in diverse matters related to their employment relationships. She routinely researches and analyzes legal authorities for drafting memoranda, pleadings and position statements related to employment law. Melissa also conducts legal research on employment case law and current events to help clients achieve their goals while complying with frequently changing regulations.

Melissa graduated magna cum laude from the...

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