Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents, one directed to employees and the other to health care providers, that address concerns about employment provisions of the Americans with Disabilities Act (ADA) and the opioid epidemic.
The EEOC explicitly states that the question and answer formatted guidance is not legally binding and does not establish new policy. Rather, the guidance seeks to provide clarity regarding existing requirements under the law, applying principles already established under the ADA, in the context of the increase in opioid use and abuse in recent years.
The guidance directed to employees, found here, defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, as well as illegal drugs like heroin, along with buprenorphine and methadone, which can be prescribed to treat opioid addiction in a medication addiction treatment program.
The employee guidance reiterates that an employee may be subject to termination or other adverse employment action based on the current illegal use of opioids, even without any performance or safety problems. Additionally, employers can disqualify an individual from employment if the employer is required to do so by other federal laws.
When employees are subject to drug testing, the guidance states that the employer should give the employee an opportunity to provide information about lawful drug use that may cause the drug test to show opioid use. This can be accomplished by either asking if the employee is on any medication that would cause a positive test result prior to administering the test or asking everyone who tests positive for an explanation.
Provided that an employee’s opioid use is legal and the applicant or employee is not disqualified by federal law, the employer is prohibited from automatically disqualifying an employee because of that opioid use. Instead, the employer must first consider whether there is a way for the employee to do the job safely and effectively.
Where an employee is currently using opioids, has a history of opioid use, or is being treated for opioid addiction, the guidance states that the employer may be required to provide a reasonable accommodation before either terminating the employee or rejecting the applicant. The guidance defines a reasonable accommodation as a “change in the way things are normally done at work” giving examples such as a different break or work schedule, a change in shift assignment, or a temporary transfer to another position. A reasonable accommodation, however, is not a lowering of production or performance standards, the elimination of essential job functions, paying for work that is not performed, or excusing illegal drug use on the job.
The guidance also explains that an employee may receive a reasonable accommodation because the employee takes prescription opioids to treat pain, is addicted to opioids (sometimes called an “opioid use disorder”), or has a medical condition related to the addiction, as those conditions can also qualify as ADA disabilities. An employee who has recovered from an opioid addiction may also receive a reasonable accommodation in the form of a modified schedule to attend meetings or therapy to help avoid relapse.
If the employee believes that s/he can do the job safely, with a reasonable accommodation, if necessary, but the employer is still concerned about safety due to the legal use of opioids, the employer can request the employee to undergo a medical evaluation. As remote or speculative safety risks cannot be used to deny or remove an employee from a job, the medical evaluation can be used to determine what the employee can objectively safely and effectively do.
The guidance to health care providers, found here, gives health care providers instruction to assist “current and former patients who have used opioids stay employed.” After covering much of the same accommodation material as the guidance to employees, the guidance to health care providers gives practical recommendations for documentation that will likely support a patient’s request for reasonable accommodation, including (1) the health care provider’s qualifications, (2) the nature of the patient’s condition, (3) the patient’s functional limitations in the absence of treatment, (4) the need for reasonable accommodation, and (5) suggested accommodations. After submission by a health care provider, the employer will use the documentation to evaluate whether to provide a reasonable accommodation, and if so, which one.
The guidance reminds health care providers that the information provided cannot be used to justify a negative employment action unless it shows that the patient is disqualified for the position under federal law, using drugs illegally, or incapable of performing essential job functions safely and competently, even with reasonable accommodation.
While the guidance is specifically directed to employees and health care providers, they still provide helpful insight to employers as to how the EEOC expects employers to interact and communicate with their employees who may be disabled under the ADA due to the use of opioids.
If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.