EEOC: Some Individuals Using Opioids Qualify for Reasonable Accommodations Under the ADA

The Equal Employment Opportunity Commission recently released guidance clarifying that individuals who are lawfully using opioid medications, those who are in treatment for opioid addiction, or those who have recovered from their addiction must be reasonably accommodated. However, current illegal drug use is not a covered disability. 

While alcoholism has always been a protected disability under the ADA, addiction to illegal drugs has not been afforded those same protections. The EEOC’s recent guidance ensures that some employees personally impacted by the opioid crisis may be extended disability protections. The EEOC has stated that this guidance is not a change in policy or law, but rather, only a clarification of the existing requirements under the ADA. 

Employees cannot be denied a job or fired from a job because they are prescribed an opioid lawfully. Whether prescribed by a physician for pain treatment or as part of an addiction treatment program that utilizes prescription opioid medications (like Suboxone) for treatment, a job will not be lost unless they cannot do the job safely and effectively or if they are disqualified for employment under another federal law. If someone tests positive for an opioid during a drug screening, they must be provided an opportunity to provide an explanation for the positive test result and cannot automatically be excluded. 

SAFETY IMPLICATIONS

If an employee’s opioid use could interfere with safe and effective job performance, the employer may still have to provide reasonable accommodation.

Some of which may include:

• A different break or work schedule so that an employee may attend treatment, a support group, or therapy;

• A change in shift assignment;

• A temporary transfer to another position

To remove someone from a position where safety is of concern but the employee disagrees (and believes they can continue to do the job safely), the employer must have objective evidence that the person cannot do the job or poses a significant safety risk, even with an accommodation. 

Some of which may include:

• The employer may require a medical evaluation to obtain objective evidence about what the employee can and cannot safely do;

• If the safety issue is only ‘now’ and the employee could perform the job safely again in the future, the employer may be required to hold the job for the employee while they take a leave for treatment or recovery;

• If the employee is permanently unable to do the job safely, they may be reassigned to another job that they can perform safely, if one is available 

DISABILITIES UNDERLYING OPIOID USE

Many conditions that cause pain significant enough for opioids to be prescribed constitute disabilities under the ADA in and of themselves. An individual using opioids to treat pain could be entitled to a reasonable accommodation if the cause of the pain is a disability. An employee who is addicted to opioids may be entitled to a reasonable accommodation such as ‘opioid use disorder’ because a diagnosable medical condition can be an ADA disability. Medical conditions associated with opioid addiction that may also be disabilities include depression and PTSD. However, someone who is using opioids illegally, even if they have been diagnosed with opioid use disorder, may still be denied an accommodation.

MEDICAL DOCUMENTATION FOR AN ACCOMMODATION REQUEST

When obtaining medical documentation from a health care provider, the employee’s physician should describe the employee’s medical condition and articulate the limitations caused by the condition. Employers should provide a job description with their provided accommodations, request paperwork so the physician can clearly address any limitations of the employee performing specific functions of the job, and ensure that any potential safety risks or threats are assessed and addressed. Further, health care providers are in a better position to address how the use and abuse of opioids impairs or limits the performance of essential job functions, and, therefore, are better equipped to offer examples of effective accommodations that may allow the employee to perform those essential functions. Employers are not required to implement the specific accommodations suggested by the employee or their health care provider, so long as the accommodations implemented are effective.

Opioids include prescription drugs, such as codeine, morphine, oxycodone, hydrocodone, and meperidine. They also include buprenorphine (like Suboxone) and methadone that are often prescribed to treat opioid addiction. Illegal drugs, like heroin, can also be classified as opioids. 

Are you prepared for a disability-related accommodation request?

• Does your handbook include an ADA policy that clearly outlines the process for requesting a reasonable accommodation to perform the essential functions of the job for persons with a disability?

• Do you have an established interactive accommodations process to evaluate and implement an effective, reasonable accommodation supported by medical documentation?

• Do you have clearly defined job descriptions that accurately reflect the essential functions of the role for each position?