Opioid use has been on the rise in recent years. Many people became addicted after doctors prescribed opioid medications like oxycodone for pain control after a surgery or for a chronic injury. But because of their addictive nature, people began abusing these drugs, in many cases substituting illegal heroin (also an opioid) in their place. The problem eventually impacted the workplace, and employers were faced with the challenge of dealing with employees who were using or addicted to opioids.
Recognizing this problem, the U.S. Equal Employment Opportunity Commission just recently issued new technical assistance concerning opioid use in the workplace. Generally, these documents explain how the Americans with Disabilities Act (“ADA”) applies to opioid use or abuse. One document, found here, is targeted at health care providers. The other, found here, is a Q&A directed to employees. While neither document is legally binding, they offer important practical advice for employers to deal with employees who may have a problem with opioids. Here are some of the highlights:
· Illegal Drug Use or Showing up to Work High Not Allowed. New EEOC publications clarify that the ADA does not does not protect against the current illegal use of drugs (heroin or opioid medications without a prescription), and also does not allow an employee to show up to work under the influence. BUT, the ADA does protect employees who are legally using opioids, or face opioid addiction, from being discriminated against on the basis of a drug-related disability and these employees may have a right to reasonable accommodation to allow them to keep a job.
· Reasonable Accommodations for Opioid Treatment, Addiction, and Conditions Related to Addiction. There are a variety of circumstances where the use of opioids may trigger an employer’s duty to accommodate under the ADA. An employee who is prescribed opioids for a medical condition that is a disability (e.g. oxycodone for cancer), those with opioid addiction or diagnosed with opioid use disorder (“OUD”), or a recovered opioid addict, may all be entitled to a reasonable accommodation according to the EEOC new technical assistance. Mental health conditions such as depression, post-traumatic stress disorder (“PTSD”) or generalized anxiety, which are often associated with opioid addiction, are disabilities for which employees may well be entitled to a reasonable accommodation.
· Engage in the Interactive Process. Employees using, addicted to, or recovering from addiction to opioids need to notify the employer of the need for an accommodation. But there are no magic words the employee has to use. If an employee provides enough information that the employer should have reason to know the employee has an opioid-related disability, the employer must engage in the interactive process to try to identify whether there exists a reasonable accommodation that allows the employee to do his/her job. The employer does not have to give the specific accommodation requested by the employee, but it must collaborate with the employee to try to identify some job accommodation that allows the employee to perform the essential functions of the job. If there is more than one effective accommodation, the employer gets to choose which one to grant.
· Medical Documentation. An employer is permitted to ask for a note or other documentation from a medical provider that helps it determine if the employee has a qualifying disability and the appropriate accommodation for a disability-related condition. To that end, a doctor’s note to support an opioid-related accommodation request should explain 1) the provider’s qualifications, 2) the nature and length of the relationship to the patient/employee, 3) the nature of the patient’s medical condition, 4) the employee’s functional limitations in the absence of treatment (i.e. what major life activities are limited), 5) how the medical condition makes changes at work necessary and 6) the suggested accommodation.
· Drug Testing. Given that opioid use may well support a disability, an employer should give anyone who they drug test an opportunity to provide information showing a lawful use of the drug. Ask before a drug test whether the employee is on any medication that might cause a positive result, or ask all people who test positive for an explanation of the positive result. If it stems from legal opioid use, discipline is probably not the right action.
· Safety Concerns. To remove an employee from the job for safety reasons, the employer must have evidence that the employee poses a significant risk of substantial harm to him/herself, other employees or the public. This is a relatively high standard and cannot be based on mere speculation. Employers are permitted to seek information from a medical provider to help it determine whether an employee poses a safety risk. To that end, the EEOC suggests that medical providers provide information about the level of risk posed by the disability, taking into account the probability and imminence of the harm, as well as the duration and severity of the risk.
· Leave and Job Restoration. Taking a leave of absence for opioid treatment/recovery (e.g. to attend rehabilitation) may well be a reasonable accommodation. Opioid users may be entitled to use accrued sick leave, FMLA, or vacation time. An employer may also be required to return the employee to the same or equivalent position if the employee uses FMLA or other job-protected leave.
· Reassignment. If an employee believes he/she is permanently unable to do his/her job because of an opioid related disability, the employee may ask for reassignment to a different job as a reasonable accommodation. If one is available, and reassigning the employee is not unduly burdensome, then the employer may well need to take that step as an accommodation.
· No Retaliation. Opioid use or addiction disorders do not excuse employees from meeting legitimate, non-discriminatory performance expectations. But employers must NEVER terminate or take any other adverse employment action against an employee because he/she asks for a reasonable accommodation for a disability, whether it concerns opioid use or otherwise.
In sum, the new EEOC guidance clarifies that an employer cannot automatically disqualify employees from a job because of opioid use/addiction without considering if there is a way for the employee to do the job. If an employer becomes aware that an employee is using opioids or suffers from addiction issues, it is well-advised to work with the employee and his or her medical provider to determine if there is a reasonable accommodation that would allow the employee to do his/her job.