EEOC Addresses Employees’ Opioid Use in New Guidance

August 14, 2020 | Employment & Labor

The EEOC recently issued new guidance regarding employees who legally use, or have previously used, opioids. The guides provide important clarification for employees and healthcare providers regarding the interplay between the ADA and the country’s growing opioid crisis.

The new guidance addresses three groups of employees: (1) individuals legally using opioids; (2) individuals who are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT); and (3) individuals who have recovered from their addiction. Individuals who fall into these categories are protected from discrimination in the workplace under the ADA, just like employees with other disabilities. Individuals who are illegally using opioids are not covered by these guidelines or the federal protections they discuss.

The fist document issued by the EEOC, entitled “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” provides important information for employees about their rights in the workplace. This document explains that employees in the three categories above may have the right to reasonable accommodations and other protections under the ADA. So what does this mean in practice? First, an employer cannot disqualify a potential employee from a position because of past or present opioid use, so long as the present opioid use is legal, without considering if there is a way for them to do the job safely and effectively. Employers should also give anyone subject to drug testing an opportunity to provide information about their lawful drug use that may come up on such a test. Moreover, employers may have to provide reasonable accommodations to an employee legally using opioids or who is actively participating in treatment, just as they would have to accommodate other covered disabilities. For example, an employee may be entitled to a different break or work schedule, a change in shift assignment, or a temporary transfer to another position to accommodate treatment. However, like all requested reasonable accommodations, an employer is not required to eliminate essential job functions, lower performance standards, or excuse illegal drug use in order to accommodate someone who falls into one of the protected opioid categories.

The second document released, entitled “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” provides guidance to healthcare providers regarding how they can assist their patients in getting reasonable accommodations in the workplace and explaining their condition to their employer. This guidance focuses primarily on how healthcare providers can properly and effectively document a patient’s condition, their functional limitations, and their need for a reasonable accommodation. For example, a healthcare provider should explain if the opioid use is treating an underlying condition, if the accommodation is needed because of a medication’s side effects and should frame their explanations in light of the patient’s current job duties. The guidance provides that healthcare providers should also suggest specific accommodations when possible to help their patients avoid and combat unlawful discrimination.

As the opioid crisis unfortunately grows, employers and healthcare providers will have to pay more attention to the way they treat those who currently use or are recovering from the use of opioids. Employers in particular will have need to consider whether those who fall under the three categories of protected opioid users can adequately perform the essential functions of their job, and employers should anticipate potential lawsuits if they choose not to hire or not to accommodate these employees. As the EEOC points out, healthcare providers can act as an important intermediary, helping the employer understand the employee’s needs and finding a resolution before litigation arises.

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