On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing opioid addiction and employment. The EEOC defines opioids to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, meperidine, buprenorphine and methadone, as well as illegal drugs like heroin.
The first document is guidance for employees and explains that the Americans with Disabilities Act (ADA) may apply to employees “who are not engaged in the current illegal use of drugs and are qualified for employment.” The employee guidance clarifies that employees who are using opioids legally, are in treatment for opioid addiction or have recovered from their addiction are protected from discrimination and may be entitled to a reasonable accommodation under the ADA. If an employee is not disqualified by a federal law and his or her opioid use is legal (for instance, if taken to treat a medical condition), an employer cannot automatically disqualify an employee from a job because of the opioid use without consideration of whether there is a means for the employee to safely and effectively perform the job. In addition, opioid addiction (or opioid use disorder) is itself a diagnosable medical condition that can be an ADA-covered disability.
The guidance also confirms that for purposes of the ADA, it is the employee’s responsibility to ask for a reasonable accommodation, which can be done at any time, although the EEOC suggests that employees ask for an accommodation before problems in job performance occur. The employer is entitled to ask the employee to submit medical documentation supporting the request and explaining why the employee needs an accommodation. Such accommodations may include different work breaks or schedules (to attend support groups or receive treatment), changes in shift assignments, or temporary transfers to other positions.
Importantly, employers should not immediately terminate an employee for drug use. The employee guidance states that if subject to a drug test, an employee should have the opportunity to provide information about any lawful drug use that may have caused a positive test. Employers must then determine whether that employee poses a significant safety risk, even with an accommodation, before removing the employee from a job because of safety reasons.
The second document is directed at healthcare providers and provides guidance on the type and form of medical information recommended to be provided to support an employee’s accommodation request or fitness-for-duty evaluation. Specifically, the EEOC notes that the healthcare provider need not be a medical doctor to provide medical documentation related to an ADA disability accommodation request. Further, the documentation provided does not need to be extensive but should explain, among other things, the nature of the patient’s medical condition, the patient’s functional limitations in the absence of treatment, the need for a reasonable accommodation and potential effective accommodations.
In addition, the guidance lists the factors employers must evaluate when making a direct threat assessment, such as “the level of risk posed by a disability, taking into account the probability that harm will occur, the imminence of the potential harm, the duration of the risk, and the severity of the potential harm.” Therefore, a restriction such as “no operating heavy machinery” is inadequate. Instead, the EEOC states that the healthcare provider should describe the relevant medical events or behaviors that could occur on the job and the probability that they will occur, and also describe any safety precautions that would decrease the probability of that medical event or behavior happening. The guidance also directs healthcare providers to consider and assess any risks the patient’s condition may present in light of the specific nature of the work performed, and if information is needed for the healthcare provider to make an accurate assessment, he or she should ask the employer.
Though the EEOC guidance is intended for employees and healthcare providers, employers also should review the documents because they provide insight into the EEOC’s position as to opioid-related disabilities and ADA coverage. Employers should also ensure that their accommodation, drug testing and anti-discrimination policies are aligned with the new guidance and that their employees who enforce those policies are trained accordingly. Importantly, employers should also keep in mind any relevant state or city laws, which may impose even greater protections for employees who use opioids and greater responsibility on the employer to engage in the interactive process before any accommodation is requested.