New EEOC Guidance Clarifies ADA Protections Related to Opioids

This article was originally published on HR Daily Advisor and can be found here.

By Tammy Binford (with notes by Sheehan Phinney attorney Jim Reidy) | August 6, 2020

The Equal Employment Opportunity Commission (EEOC) is taking steps to clarify how the Americans with Disabilities Act (ADA) affects opioid use among employees.

While employers generally dread the thought of opioid use since it can pose safety risks, trigger absenteeism, hamper productivity, and cause any number of other problems, they need to understand their obligations under the law. The ADA makes clear an employee’s illegal use of opioid medications isn’t protected by the law, but other uses may be.

The EEOC released two question-and-answer documents on August 5: Use of Codeine, Oxycodone, and Other Opioids: Information for Employees and How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.

The guidance clarifies that employees are protected from disability discrimination when they are lawfully using opioids, are in treatment for opioid addiction and receiving Medication Assisted Treatment (MAT), or have recovered from addiction. The document also answers questions about reasonable accommodations employers may make to help employees safely perform job duties.

Effect on employers

James P. Reidy, an attorney with Sheehan Phinney in Manchester, New Hampshire, says one of the most significant aspects of the new guidance is the acknowledgement of MAT and the potential pitfalls for employers if they fail to properly handle discussions about legal opioid use, history of addiction, treatment plans, and confidential medical records. Those pitfalls include disability discrimination lawsuits and claims that an employee has been perceived as having a disability.

“What is interesting about the guidance to healthcare providers is information they may be able to use to help legal opioid users and those with a history of opioid addiction stay employed with reasonable accommodations,” Reidy says. “This is where there is often a disconnect between employers and healthcare providers.”

Reidy says employers often have a “knee-jerk” response to opioids: “Failed drug test for opioid use means job offers are rescinded or employment is terminated.”

A rise in opioid use has sparked what the U.S. Centers for Disease Control and Prevention (CDC) has labeled a public health crisis. “This has impacted the workplace with employment offers being withdrawn, workplace accidents, workers’ compensation claims, and employment terminations,” Reidy says. “While the crisis is often understood to be because of illegal opioid use, the genesis of many opioid addictions may have been overprescription of legal opioids, sometimes related to the treatment of workplace injuries.”

The new guidance, while helpful in many regards, may result in more ADA claims related to underlying disability discrimination, disability claims related to a history of substance abuse, and failure-to-accommodate-treatment or perceived-as-disabled claims, Reidy says.

Angela N. Johnson, an attorney with Faegre Drinker in Indianapolis, Indiana, says the guidance includes best practices for healthcare providers as they prepare documentation supporting patient/employee requests for accommodations. The guidance also may assist employers in assessing whether an employee’s lawful opioid use might pose a safety risk.

“Physicians and other healthcare professionals are busy, and it is not uncommon that the information employers receive and need to rely on is vague or missing altogether,” Johnson says. “So, indirectly, the guidance for healthcare providers will likely prove useful for employers.”

Advice to employers

When employers encounter an applicant or employee whose drug test reveals recent opioid use, the initial reaction may be that the drug use is unlawful or a sign of addiction, but “it’s important to pause before taking any adverse action until the job applicant or employee has had an opportunity to explain,” Johnson says.

Employers need to explore whether a worker’s lawful use can be accommodated without posing a risk of harm. “The same ADA principles, including the obligation to consider reasonable accommodations and engage in the interactive process, exist even when it comes to use of drugs that have the potential for abuse,” Johnson says.

Johnson also advises employers to refer employees to any employee assistance program that might be available and seek guidance from employment counsel.

Reidy also has advice for employers navigating the ADA as it relates to drug use. He says employers need to understand which substances are legal and illegal, make sure their alcohol and drug-testing policies are up-to-date, and make sure applicants receiving conditional offers of employment are aware of the need to disclose medications that may show up on a drug screen.

Also, Reidy says employers need to understand when an applicant or employee may be disqualified from a job because of current drug use—legal or illegal. In addition, employers need to discuss any positive drug test with an employee before employment is terminated, and they need to know how to handle the interactive process under the ADA with the employee and healthcare providers.