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.”