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Employers Must Accommodate Some Workers’ Opioid Use and Treatment

While the country remains focused on the COVID-19 pandemic, U.S. employers cannot ignore the ongoing opioid epidemic or how it may affect their workforces.  On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released new guidance addressing the rights of opioid users in the workplace under the Americans with Disabilities Act (“ADA”).[1]  The two question-and-answer documents clarify that while current illegal drug use is not protected, employees who “are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally” may be entitled to reasonable accommodations under the ADA.  Although the EEOC’s documents are intended to explain an opioid user’s workplace rights to the employee and their health care professional, the documents also provide helpful information to employers that may be considering taking action against an employee who uses one of these medications.

Guidance for Employees (and Employers!)

In the first document, “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” the EEOC clarifies that employers can take adverse employment actions against workers who illegally use opioids, even if the individual has had no performance or safety issues.  Unless required by another federal law (e.g., U.S. Department of Transportation requirements), however, the ADA does not permit disqualifying or terminating an individual who legally uses opioids, including as directed in a Medication Assisted Treatment program (“MAT program”), without the employer first considering if there is a way for the employee to do the job “safely and effectively.”

The EEOC explains that a reasonable accommodation may consist of a different break or work schedule to permit treatment or therapy, a new shift assignment, or a temporary transfer to another position.  These and other reasonable accommodations may even be available for those with an opioid addiction (also called “opioid use disorders”) or a medical condition related to opioid addiction (e.g., post-traumatic stress disorder and major depression).  Additionally, an employee who leaves work to seek treatment for opioid addiction may be entitled to take sick and other accrued leave, unpaid but job-protected federal Family and Medical Leave Act (“FMLA”) leave, or other unpaid leave as a reasonable accommodation.

Importantly, the guidance stresses that the duty to reasonably accommodate does not mean that employers must lower performance standards, eliminate essential job functions, or excuse bad behavior.  Nor are employers prohibited from reducing pay if the accommodation results in less work being performed.  Although the employee need not have a specific accommodation in mind, it is the employee’s responsibility to request a reasonable accommodation for his or her legal opioid use.  The EEOC notes that employers are allowed to ask for documentation from the employee’s health care provider that confirms the legal opioid use or related disability and explains why a reasonable accommodation is necessary.

For those employers with drug testing programs, the EEOC recommends offering employees an opportunity to explain positive test results.

Guidance for Health Care Providers (and Employers!)

The second document, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” is intended to guide medical providers regarding documentation of covered disabilities under the ADA.  In order to help their patients seek a reasonable accommodation, the EEOC recommends medical documentation be written using plain language explaining:

  • The provider’s professional qualifications and details regarding the nature and length of their relationship with the employee;

  • The nature of the employee’s medical condition;

  • The extent to which the employee’s opioid use would limit a “major life activity” (e.g., walking, lifting, sleeping, and/or concentrating) without treatment;

  • The need for a reasonable accommodation; and

  • Suggested accommodations, without overstating the need for any one particular accommodation in case an alternative is necessary.

The EEOC notes that providing employers with flat restrictions such as “no operating heavy machinery” is insufficient.  Instead, medical professionals should help employers determine if the employee poses a “direct threat” by providing relevant medical events or behaviors that could occur on the job (e.g., loss of consciousness), and the probability that such events may occur.  The documentation should also describe “any safety precautions that would reduce the changes the medical event or behavior will occur.”

Putting the Guidance to Work

In light of the EEOC’s guidance, employers should review their substance abuse and drug testing polices and make sure such policies distinguish between legal and illegal opioid use.  Additionally, employers who drug test their employees should consider allowing their workers to explain any positive result.  Employers should also be sure they permit employees receiving treatment for opioid addiction to use available sick and accrued leave, or FMLA leave where applicable.

[1] The EEOC defines “opioids” as including “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 (‘MAT’) program.”

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 223

TRENDING LEGAL ANALYSIS


About this Author

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

202-861-1863
Garen E. Dodge Employment, Labor & Workforce Management Attorney Epstein Becker & Green Washington, DC
Member of the Firm

GAREN E. DODGE is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Washington, DC, office of Epstein Becker Green. Mr. Dodge’s diverse practice covers the spectrum of labor and employment litigation. His clients include employers from a broad range of industries—including communications, education, food and beverage, hospitality, retail, and transportation, among others—as well as those that do business with federal, state, and local government agencies.

Mr. Dodge:

  • Represents employers before state and federal courts and in mediations and arbitrations on matters involving labor, privacy, discrimination, background checks, harassment, wage and hour, occupational safety and health, and other employment law issues
  • Advises clients on matters relating to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Fair Labor Standards Act
  • Assists companies in establishing workplace harassment, affirmative action, substance abuse, and other programs
  • Trains supervisors and employees on effective personnel policies
  • Conducts workplace investigations
  • Represents clients before Congress and key federal agencies on labor and employment issues

A few of Mr. Dodge’s recent victories include serving as lead counsel in a jury trial alleging defamation in a circuit court in Fairfax, Virginia; obtaining an injunction in DC federal court in a non-compete case; and prevailing in a five-day arbitration involving allegations of age and national origin discrimination. Throughout his career, he has served as counsel of record in seminal U.S. Supreme Court and appellate cases as Amicus Curiae. In addition, he has testified before agencies such as the U.S. Commission on Civil Rights.

Before joining Epstein Becker Green, Mr. Dodge was a partner in the Labor and Employment Practice Group of an international law firm. Prior to that, he was a Principal of a national law firm, where he served as the Leader of its Government Relations practice, Co-Coordinator of the firm’s Government Contracts industry group, and Co-Coordinator of the firm’s Background Checks industry group. Earlier in his career, Mr. Dodge served as an Attorney-Advisor for the Benefits Review Board of the U.S. Department of Labor’s Office of the Secretary.

Mr. Dodge is a frequent speaker before industry and other groups on employment topics. He is the author (or co-author) of many publications, including the book Winning the War on Drugs: The Role of Workplace Drug Testing. He is also an Adjunct Professor at The George Washington University School of Business.

202-861-1814
Anastasia A. Regne, labor and employment law clerk, Epstein Becker
Law Clerk

ANASTASIA A. REGNE* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She will be focusing her practice on employment litigation, labor-management relations, and employment training, practices, and procedures.

Ms. Regne received her Juris Doctor, cum laude, from the Benjamin N. Cardozo School of Law, where she was the President of the Cardozo Labor & Employment Law Society, an editor of the Moot Court Honor Society, and an Alexander Fellow for the Honorable...

212-351-4609
Eric I. Emanuelson, Jr. Law Clerk New York
Law Clerk

ERIC I. EMANUELSON, JR.,* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. He will be focusing his practice on disability laws, employment litigation, and employment training, practices, and procedures.

Prior to joining Epstein Becker Green, Mr. Emanuelson worked as a Legal Intern at the General Counsel’s Office of the largest labor union representing federal government employees. He also served as a Legislative Aide to Connecticut State Senator Edward Meyer.

Mr...

212-351-3759