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EEOC Clarifies ADA Provisions Covering Opioid Use Disorder

— August 25, 2020

The Equal Employment Opportunity Commission released informal guidelines regarding opioid use in the workplace.

The Equal Employment Opportunity Commission (EEOC) has released new guidelines for employees regarding the use of opioids as well as employer obligations, citing the Americans with Disabilities Act (ADA).  The agency also released guidance for health care providers on helping patients taking opioids stay employed.  The informal guidance is meant to offer information on what is and is not protected under the ADA.

The documents refer to prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine, as well as illegal drugs, such as heroin. They also include buprenorphine and methadone, typically prescribed to a patient with opioid use disorder in a medication-assisted treatment (MAT) program.

Included in the guidelines are frequently asked questions that address both legal and illegal use of opioids in the workplace.  The ADA no-discrimination provisions allow employers to take disciplinary action or terminate an employee who is under the influence of illegal opioids even if the employee presents no performance or safety issues.  However, if the opioid use is legal, an employer cannot automatically discharge an employee from his or her position as long as there is no safety concerns and the employee is effective.

EEOC Clarifies ADA Provisions Covering Opioid Use Disorder
Photo by Sebastian Herrmann on Unsplash

Employers must make reasonable accommodations as needed if the employee is legally using opioids to treat an underlying medical condition(s).  The protections apply even if an employee is experiencing addiction to lawfully used opioids, which the guidance treats as a diagnosable medical condition.  Employees seeking leave for treatment or recovery from opioid use disorder should be permitted to use leave “in the same manner as other employees requesting leave for medical treatment,” according to the EEOC.

Under ADA, an employee cannot be denied or terminated from a position based solely on the fact that they are in a MAT program unless the employee cannot do his or her job safely and effectively.  Any employer performing drug testing should allow an employee to disclose legal opioid use. The guidance also makes clear “an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.”

Health care provider guidelines also include information on “Helping Your Patients Seek Reasonable Accommodation,” and how to coordinate with employers to help an individual stay employed.  The EEOC recommends that “health care providers explain, in plain language the provider’s professional qualifications and the nature and length of their relationship with the patient; 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 how the patient’s medical condition makes changes at work necessary; and what accommodation(s) are suggested.”

The EEOC suggests the health care provider should “describe relevant medical events or behaviors that could occur on the job and state the probability that they will occur,” and “[w]here relevant, consider and assess any risks [the] patient’s condition may present in light of the type of work [the] patient performs on a day-to-day basis, the type of equipment he or she uses, his or her access to harmful objects or substances, any safeguards in place at the worksite, the type of injury or other harm that may result if one of the identified medical events or behaviors occurs,  and the likelihood that injury or other harm would in fact occur as a result of the event or behavior.”

In releasing the information, the agency stressed its latest guidelines “do not have the force and effect of law and are not meant to bind the public in any way” but rather are “intended only to provide clarity to the public regarding existing requirements under the law.”


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