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EEOC Releases Guidance on Employee Opioid Use and the ADA

The Equal Employment Opportunity Commission (“EEOC”) has released new informal guidance directed at employees regarding use of opioids and employer obligations under the Americans with Disabilities Act (“ADA”). The EEOC also released a companion document for health care providers on helping patients who have used opioids to remain employed.

The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine, as well as illegal drugs like heroin. They also include buprenorphine and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment (“MAT”) program.

The following are some key points from the employee guidance:

  • Employees who are presently or have in the past lawfully used prescribed opioids, or who are in recovery from prior lawful or unlawful opioid use (but are not currently unlawfully using opioids) generally will be protected under the ADA’s non-discrimination provisions. Such employees also may be eligible for reasonable accommodations if needed due to their lawful use of such medication or the underlying medical condition(s) necessitating the need for the medication. However, employees who are currently unlawfully using opioids are not protected under the ADA.
  • The ADA’s protections apply even if an employee is presently experiencing addiction to lawfully used opioids. The guidance further states that opioid addiction is itself a diagnosable medical condition that can be an ADA-covered disability and may require an employer to consider reasonable accommodation, such as periodic time away from work to attend therapy or support group sessions to avoid relapse or an extended leave of absence for treatment or recovery. The guidance goes on to note that employees seeking leave for treatment or recovery from opioid addiction should be permitted to use sick and accrued leave in the same manner as other employees requesting leave for medical treatment.
  • In addition, employees who are presently taking an opioid medication as directed in a MAT program are deemed to have a valid prescription and their use of the medication as prescribed is therefore legal. The guidance makes clear that, under the ADA, an employee cannot be denied or terminated from a job solely because they are in a MAT program unless the employee cannot do the job safely and effectively (discussed further below), or the employee is required to be disqualified under another federal law.
  • With regard to drug testing, the guidance states that an employer should give any employee subject to drug testing an opportunity to provide information about lawful drug use that may cause a result that shows opioid use. An employer may do this by asking before the test is administered whether the employee takes medication that could cause a positive result, or it may ask all employees who test positive for an explanation.
  • In cases where an employer believes that an employee’s opioid use, history of opioid use, or treatment for opioid addiction could interfere with the safe and effective performance of their job, the employer may be required to engage in an interactive process and provide reasonable accommodation if doing so would eliminate the safety or performance concerns and would not cause an undue hardship on the employer. That being said, the guidance notes that once an employer has alerted an employee about their concerns regarding the employee’s opioid use or history of such use, it is the responsibility of the employee to ask for a reasonable accommodation if they want one. The guidance also makes clear that “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 related guidance for health care providers addresses many of the same points as the employee guidance with regard to the potential availability of reasonable accommodation related to opioid use. It also includes a section entitled “Helping Your Patients Seek Reasonable Accommodation,” addressing, among other things, what details are helpful to include when providing documentation to an employer of an employee’s opioid use and underlying medical condition(s). The guidance recommends that health care providers explain, in plain language:

  • the provider’s professional qualifications and the nature and length of their relationship with the patient;
  • the nature of the patient’s medical condition;
    • on this point, the guidance notes that if the patient needs an accommodation because of an underlying medical condition, or because of an opioid medication’s side effects, the provider should identify the underlying condition, but if the patient asks the provider not to reveal that his or her problems at work are due to opioid use or an underlying condition related to opioid use, “the employer might be satisfied with a more general description of the individual’s medical status (e.g., that he or she is being ‘treated for addiction’ or has a mental health condition)”
  • the patient’s functional limitations in the absence of treatment;
  • the need for a reasonable accommodation, and how the patient’s medical condition makes changes at work necessary; and
  • what accommodation(s) are suggested.

The guidance also states that, in cases where an employer is inquiring as to whether an employee would post a safety risk due to opioid use, it is not enough to simply provide a list of restrictions such as “no operating heavy machinery.” Rather the provider should “describe relevant medical events or behaviors that could occur on the job (e.g., a loss of consciousness or nausea), and state the probability that they will occur,” and “[w]here relevant, consider and assess any risks [the] patient’s condition may present in light of the type of work [the] patient performs on a day-to-day basis; the type of equipment he or she uses; his or her access to harmful objects or substances; any safeguards in place at the worksite; the type of injury or other harm that may result if one of the identified medical events or behaviors occurs; and the likelihood that injury or other harm would in fact occur as a result of the event or behavior.”

In sum, none of the information contained in the latest guidance sets forth new policy or a change in the EEOC’s prior interpretation of the law, and the EEOC stresses that the guidance documents “do not have the force and effect of law and are not meant to bind the public in any way” but rather are “intended only to provide clarity to the public regarding existing requirements under the law.” Nevertheless, the documents provide useful guidelines for employers facing concerns about an employee due to their current or former opioid usage.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 223

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About this Author

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm
Partner

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

212.969.3132
Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm
Associate

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour and class and collective action litigation, and she is a frequent contributor to the Proskauer on Class and Collective Actions blog.

212-969-3631