The opioid crisis has long concerned employers, but the COVID-19 pandemic appears to have caused a resurgence. In fact, according to the U.S. Centers for Disease Control and Prevention (CDC), the latest rise in opioid use has generated a public health crisis.
For businesses, the use of opioids by employees has been linked to increased safety risks, higher absenteeism, and hampered productivity—so many employers try and avoid opioid-related obstacles by issuing drug tests and instantly dismissing individuals with positive results. However, legal opioid use amongst employees is an inevitable reality and requires you to prepare for your obligations under the law.
In August, the Equal Employment Opportunity Commission (EEOC) took steps to clarify how the Americans with Disabilities Act (ADA) affects opioid use among employees. With mental illness and physical health at the forefront of everyone’s mind, let’s review the latest EEOC documents and how they will influence compliance moving forward.
The EEOC’s Latest Guidance on Opioid Use
It goes without saying, but illegal use of opioid medications by any member of your workforce is not protected by the law. However, the EEOC’s “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees” clarifies that the following individuals are protected from disability discrimination under the ADA:
- Individuals using opioid medication lawfully;
- Those who are in treatment for opioid addiction/receiving Medication Assisted Treatment (MAT); and
- Those who have recovered from opioid addiction in the past.
If any of these apply to your employee, it may trigger reasonable accommodations and other protections. In addition, the document refines many of the rights already established under the ADA. Here are some of the key takeaways:
- You may take negative employment actions towards employees based on the illegal used of opioids or if a federal mandate requires you to do so. This includes denying requests for accommodations, even if that employee has been diagnosed with Opioid Use Disorder (OUD).
- You cannot automatically dismiss an employee or disqualify a potential hire for legal opioid use without considering alternative ways an employee could safely and effectively do their job.
- The recommended procedures for determining whether or not an employee can safely perform their duties must include objective evidence that the individual cannot do the job (even with a reasonable accommodation) and poses significant risk to themselves or others. You may legally request a medical evaluation to determine both.
- Reasonable accommodation is required if the medical condition affecting your employee are among those defined under the ADA. The condition does not need to be permanent or inhibiting to their work to qualify. The EEOC suggests changing operational elements as often as possible to accommodate these situations i.e. offering a different break or schedule, allowing for shift flexibility, or a temporary transfer to another position.
- Comorbid conditions such as depression, post-traumatic stress disorder (PTSD), and other mental health disorders are covered under the ADA. It is therefore important that you give employees a chance to report their medications or explain positive drug tests before taking action. For more information on mental health conditions under the ADA, see Depression, PTSD, & Other Mental Health Conditions in The Workplace: Your Legal Rights and The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work.
- Employees are protected from disability discrimination if they are lawfully using opioids, or are in treatment for opioid addiction and receiving Medication Assisted Treatment (MAT).
For more information regarding the role of healthcare providers’ roles, employees’ legal rights in the workplace, and guidance on reasonable accommodation requests or documentation procedures, see the EEOC’s second brief: “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.”
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