Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

Opioid Addiction

EEOC Issues New Guidance on Opioid Addiction

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued technical guidance on opioid addiction and employment. Workforce substance abuse is on the rise and can cause many expensive problems for businesses and industries. These problems can range from a loss of productivity, injuries, disruption of operations, and increased health insurance claims. While employers may prohibit the illegal use of drugs and alcohol at the workplace, they may not discriminate against a person based on drug addiction or alcoholism.

Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) prohibits disability discrimination in areas including employment, transportation, and public services. Title 1 of the ADA focuses on the workplace and requires employers to make reasonable accommodations for employees with disabilities. The EEOC has enforcement responsibility for Title 1 of the ADA.

The ADA does not protect an employee or job applicant who is “currently engaging” in the illegal use of drugs. However, it does extend protections to employees who:

  • who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
  • are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
  • are regarded, erroneously, as illegally using drugs.

EEOC Technical Documents on Opioid Addiction

Two new technical documents from the EEOC intend to provide clarity to existing requirements under the ADA.

The EEOC notes that this guidance “is not a new policy,” but instead explains existing principles.

“Use of Codeine, Oxycodone, and Other Opioids: Information for Employees”

This guidance document explains that those using prescription opioids, addicted to opioids, or who were addicted to opioids in the past may have the right to reasonable accommodations. The EEOC states that employers can’t fire a worker who lawfully uses opioids unless the employer first considers whether there is a way for them to perform their duties safely. The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine and illegal drugs like heroin.

Click here to access “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees.”

Disqualification from a Job

The legal use of an opioid seldom automatically disqualifies an employee for a job. Conversely, employers can fire (or not hire) employees for illegally using opioids, even if there aren’t any safety or performance concerns.

In the case of legal opioid use by prescription, the employer must first consider whether the employee can do the job safely and effectively.

Reasonable Accommodations

Employers must provide reasonable accommodations to a job applicant or an employee who needs them because of a medical condition that qualifies as a disability under the ADA unless it would impose an undue hardship on the employer. Reasonable accommodations can include a change in the way things are generally done at work, including different breaks or work schedule, a change in shift assignments, and temporary transfers.

Employers may need to accommodate employees’ opioid use when the employee:

  • takes prescription opioids to treat pain;
  • is recovering from opioid addiction; or
  • has a medical condition related to an opioid condition.

Employees may request a reasonable accommodation from their employer at any time. In evaluating the accommodation request, an employer must engage in an “interactive process” with the employee. In some cases, the employer may ask the employee to submit medical documentation to support their request. An employer does not have to provide the accommodation requested if an alternative accommodation would also enable the employee to perform the essential functions of the job.

For more on reasonable accommodations, click here.

Sick Leave for Treatment or Recovery

When an employee requests to take a leave for treatment or recovery, an employer may be required to allow the individual to use accrued paid leave or permit the employee to take time off without pay if no qualifying paid leave is available.

Drug Testing

This EEOC guidance document emphasizes that if a business has a drug-testing program, employers should give any applicant or employee a chance to provide information about lawful drug usage.

“How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed”

This guidance document lays out the legal road map for healthcare providers. The guidance begins by describing workers’ ADA rights and the process of reasonable accommodations for disabilities. Then the guidance offers medical professionals tips on how to write and provide employers with medical documentation about a person’s condition.

When a patient asks for a reasonable accommodation, the employer may ask for medical documentation of the employee’s disability. This EEOC guidance on opioid addiction suggests that medical providers might include the

  • Medical professional’s qualifications and the nature and length of the relationship with the patient;
  • Nature of the patient’s medical condition;
  • Patient’s functional limitations in the absence of treatment;
  • Need for a reasonable accommodation; and
  • Suggested accommodations.

Click here to access “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.”

Review Your Company Policies and Procedures

Not everyone understands the implications of disability discrimination laws related to opioid addiction. Employers should take this opportunity to review their policies and procedures related to employee drug use. Additional training for managers can also help avoid inadvertent violations of the ADA.

Employee Contact Information

NLRB Proposes Reduced Disclosure of Employee Contact Information in Union Elections

On July 28, 2020, the National Labor Relations Board (NLRB) proposed additional amendments to its current rules and regulations governing election procedures. One of the proposals would modify what employee contact information employers must provide to unions before the election. Specifically, employers would no longer be required to disclose employees’ personal email addresses and home and cellular telephone numbers.

History of Employee Voter Lists

In a 1966 case involving Excelsior Underwear, Inc., the NLRB established a requirement that employers provide unions petitioning to represent employers with a list of eligible voters before the election. Employers originally had to include only the employees’ home addresses:

“[The access of all employees to such communications can be insured only if all parties have the names and addresses of all the voters. In other words, by providing all parties with employees’ names and addresses, we maximize the likelihood that all the voters will be exposed to the arguments for, as well as against, union representation.”

In 2014, an Obama-era NLRB majority revised its election rules and regulations. These amendments included new employee contact information requirements for the voter lists. Employers had to disclose all “available” personal email addresses and home and personal cellular telephone numbers of all eligible voters. According to the NLRB in 2014, this addition addressed the dramatic change in electronic communications. Reasons provided in support of this greater disclosure included:

  1. The prevalence of telephones as compared to 1966;
  2. The ability to leave voicemails if someone doesn’t answer the original phone call;
  3. The emergence of cellular and smartphones as a universal point of contact combining telephone, email, and text messaging;
  4. The need to reach persons who rely on their phone, rather than email for communication; and
  5. The fact that some employers may not bother to update physical addresses and may contact their employees exclusively via phone.

Proposed Change Regarding Employee Contact Information

The 2014 rule imposed new administrative burdens on employers and raised privacy concerns from employees.

Now the NLRB seeks to undo much of the 2014 expansion of the voter lists. The proposed rule would eliminate the additional employee contact information, specifically the personal email addresses and home and cellular telephone numbers.

A press release announced, “The Board believes, subject to comments, that elimination of this requirement will advance important employee privacy interests that the current rules do not sufficiently protect.”

Public Comment Period

The public has until September 28, 2020, to submit initial comments. There is then another opportunity to submit replying comments (to comments submitted by others) by October 12, 2020.

Assuming the proposed rule takes effect, it will only affect employers involved in an NLRB election. These most often consist of situations where a union is seeking to represent a group of employees in a company.

 

For more on significant labor law developments, please follow Horton Law on LinkedIn or subscribe to receive our email newsletter.

 

Reopening New York Part III

Reopening New York, Part III (Webinar Recap)

On August 13, 2020, we presented a complimentary webinar called “Reopening New York, Part III”. For those who couldn’t attend the live webinar, we’re happy to make it available for you to watch at your convenience.

In the webinar, we discuss:

  • Ongoing Business Restrictions
  • Employee Travel & Childcare Issues
  • Impact of School Reopening
  • Navigating New and Old Leave Laws
  • What’s Ahead for Employers?

With all of New York State now in Phase 4 of the State’s reopening plan, it’s still not back to business as usual. The same will be true for schools that are preparing to reopen in September. School districts will vary in how they get back to teaching, ranging from full in-person to fully remote models. This will create disparate impacts on employees with school-aged children.

Not limited to school issues, this webinar address the current status of New York’s reopening process. Content includes discussion of various leave laws that must be navigating for employees seeking to care for their children or address medical concerns potentially related to COVID-19.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Reopening New York, Part III”

Our third webinar in this series anticipates the issues employers may face as schools “reopen” in September. Many employees will face unusual challenges this school year because of COVID-19. This will range from childcare to new stresses of students learning more at home and less at school

Among other topics, this webinar focuses on the various complex leave laws that employers must navigate when employees say they can’t work. This includes a new statewide Paid Sick Leave law that takes effect in New York as of September 30, 2020.

Make sure your company is prepared to balance employee needs with business demands. Plus, we expect further legal developments that will further complicate the workplace during the COVID-19 pandemic.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs!

And follow us on LinkedIn for even more frequent updates on important employment law issues.