EEOC Issues New ADA Guidance on Opioid Use and Addictions
Last week the Equal Employment Opportunity Commission (EEOC) released two new technical assistance documents providing the Commission’s opinions about the interaction of opioid use and an employer’s obligation to accommodate disabilities under the Americans with Disabilities Act (ADA). The documents are not specifically addressed to employers; a fact which again illustrates the agency’s bias in favor of employees and against employers. Nevertheless, wise employers should be familiar with the contents.
The first document is entitled “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees.” The document defines opioids to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and illegal drugs like heroin. The definition also includes buprenorphine and methadone which may be used to treat opioid addiction in a medication assisted treatment program. Using a question and answer format, the guidance goes on to clarify that while an employee’s current illegal use of drugs is not protected under the ADA, an employee is protected if they are lawfully using opioids, are in treatment for opioid addiction, or have recovered from an addiction. The document addresses job disqualification, drug testing, safe performance, and reasonable accommodations. It also gives employees information on how to request an accommodation and how to pursue claims with the agency.
The second document is entitled “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.” It also uses the question and answer format. The document gives examples of what might constitute a “reasonable accommodation” under the ADA and clarifies for health care professionals that opioid use disorder is likely to qualify as a “disability” under the law. It specifically discusses how the health care provider can help an employee get a reasonable accommodation. Surprisingly, this section of the document instructs the health care professionals to provide fairly detailed information in their documentation for employers. In fact, reference to this section of the guidance might be effective when an employer encounters the common situation that the provider gives only vague information that is not helpful in conducting a proper analysis during the required interactive process.
Issuance of these two documents should be a reminder to employers that ADA compliance can be very tricky and that even the use of illegal drugs may be protected under the ADA. Accordingly, employers should not take immediate employment actions against an employee who tests positive for opioids (legal or illegal). Employers will want to get more information and possibly conduct an ADA analysis before making a final decision.
The technical assistance documents can be found here:
https://www.eeoc.gov/laws/guidance/use-codeine-oxycodone-and-other-opioids-information-employees