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.