New EEOC Guidance on Opioids in the Workplace
The U.S. Equal Employment Opportunity Commission (EEOC) recently released guidance addressing questions about opioids and the employment provisions of the Americans with Disabilities Act (ADA). While the guidance doesn't establish new policy, it can be helpful to review it to better understand employee and employer rights.
Under the ADA, employers with 15 or more employees are prohibited from discriminating against qualified applicants and employees because of a physical or mental disability. The ADA requires that covered employers provide reasonable accommodations unless doing so would cause undue hardship to an employer's business operations. A reasonable accommodation is any modification or adjustment to the work environment that will enable a qualified applicant to participate in the application process or help an employee with a disability perform the essential functions of the job. However, the ADA's protection from discrimination and the right to reasonable accommodation doesn't apply to any applicant or employee who is currently engaging in the illegal use of drugs.
Note: Some states have their own disability laws, some of which cover smaller employers and/or have broader protections.
In the guidance, the EEOC states that employers have the right to take adverse action against individuals based on their illegal use of opioids, even if they don't have performance or safety problems. Employers may also disqualify individuals if another federal law requires them to do so.
However, if individuals are taking opioids legally for a disability and aren't disqualified from the job by federal law, the employer is prohibited from excluding the individual from employment or taking other adverse action, unless they have objective evidence that they cannot do the job or that they pose a significant safety risk, even with a reasonable accommodation (see below). For instance, if an individual is taking an opioid medication as directed by a Medication Assisted Treatment program for addiction, then they have a valid prescription and their use of the medication is legal. Therefore, they're protected from adverse action unless they cannot do the job safely and effectively, or they're disqualified under another federal law.
The guidance states that an employer should give anyone subjct to drug testing an opportunity to provide information about lawful drug use that may cause them to test positive for opioid use. For example, the employer may ask all individuals who test positive for opioids for an explanation, according to the EEOC.
If individuals aren't using opioids illegally and aren't disqualified from the job by federal law, covered employers must provide a reasonable accommodation to employees with disabilities that would allow them to perform the job safely and effectively, unless it would impose an undue hardship on the employer.
The guidance makes clear that opioid addiction itself can be an ADA disability and subject to reasonable accommodation, provided the individual is no longer using opioids illegally. For instance, an employee who is in recovery from opioid addiction may need a flexible schedule or time off to attend a support group meeting or therapy session.
Consider reviewing the guidance in full and reviewing policies and practices to ensure that they comply with federal (and state) law.