Employers should be aware of two recent technical assistance guidance documents issued by the U.S. Equal Employment Opportunity Commission (EEOC) addressing the opioid epidemic in relation to the antidiscrimination and reasonable accommodation provisions of the Americans With Disabilities Act (ADA).
The first, “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,”1 explains opioid-related disabilities and provides questions and answers for employees who may wish to seek a reasonable accommodation in the workplace for lawful opioid use or an opioid addiction. The second, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,”2 provides guidance to health care providers providing information to employers on behalf of patients as part of the ADA reasonable accommodation process.
In an August 5, 2020, press release announcing the guidance, the EEOC stated that “[t]he increase of opioid use and abuse in recent years poses unique challenges to the workplace.”3 While not legally binding, both sets of guidance clarify the existing law and EEOC policies regarding the reasonable accommodation process in the context of opioid use.
Growing Public Concern About the Impact of the Pandemic on the Opioid Crisis
The guidance is issued amid growing public concern about the impact of the COVID-19 pandemic on the opioid crisis in the United States over the past six months. In response to reports from states of increases in opioid-related deaths during the pandemic and social distancing rules causing barriers to patients’ obtaining opioid-based treatments, the American Medical Association (AMA) recently issued recommendations for states to address these issues.4 The Centers for Disease Control and Prevention also has cautioned about the risks of drug and other substance abuse during the pandemic.5 While not specifically addressing these developments, the EEOC’s new guidance aims to address accommodations for opioid use against this backdrop of a persistent and increasing crisis.
Information for Employees Seeking Opioid-Related Workplace Accommodations
In “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” the EEOC states that while current illegal drug use is not a covered disability, individuals who are lawfully using opioid medication, are in treatment for opioid addiction, and are receiving medication assisted treatment (MAT) or who have recovered from an opioid addiction are protected from disability discrimination and also may have the right to a reasonable accommodation under the ADA.
The guidance defines “opioids” as including prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine as well as illegal drugs like heroin. “Opioids” also includes buprenorphine and methadone, which can be prescribed as part of a MAT program to treat addiction.
An employer may terminate or take other adverse action against an employee based on the current illegal use of opioids, even if the employee does not have any performance or safety problems. In addition, an employer is permitted to disqualify an employee from a job if required to do so under another federal law. However, if the employee is not disqualified under federal law and the opioid use is legal, the employer cannot automatically disqualify the employee based on the lawful opioid use. Instead, the employer must determine if there is a way for the employee to safely and effectively perform the job (that does not involve significant difficulty or expense).
The guidance further provides that an employer may have to provide a reasonable accommodation for the lawful use of opioids, an opioid addiction (provided there is no illegal drug use), recovery from an opioid addiction, or a comorbid condition related to opioid addiction, such as major depression or post-traumatic stress disorder. The guidance cites changes to a break schedule, work schedule, or shift assignment or a temporary transfer to another position as potential accommodations. However, the guidance also reiterates that an employer never has to lower its production or performance standards, eliminate essential functions of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.
With respect to drug testing, the EEOC guidance states that employers should give employees an opportunity to provide information about lawful opioid use that may cause a positive test result. This can be done by asking all individuals who take the test whether they are on medication that could cause a positive result or asking all individuals who test positive for an explanation.
Information for Health Care Providers Regarding Reasonable Accommodations
In “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” the EEOC provides health care providers with information regarding opioid-related conditions that might be covered under the ADA and the reasonable accommodation process for employees seeking accommodations from their employers for such disabilities. The guidance also explains the information a provider should include in medical documentation to the employer when a patient requests a reasonable accommodation.
Specifically, the guidance recommends that medical providers provide documentation using plain language that (upon request by the patient) explains
- the provider’s professional qualifications and length of relationship with the patient
- the nature of the patient’s medical condition
- the patient’s functional limitations in the absence of treatment, including a description of how the condition would limit a major life activity when the symptoms are at their worst
- the need for a reasonable accommodation, including how the patient’s condition makes a change at work necessary
- suggested accommodations
The guidance also explains that an employer will use the information from the provider to evaluate a request for an accommodation and notes that an employer may contact a provider for additional information.
Employer Safety Inquiries
The guidance for health care providers explains the type of information a provider should provide if an employer asks whether the employee poses a safety risk (regardless of whether this inquiry is in the context of federally regulated work or a more general inquiry about safety issues). Providers should provide information that helps the employer assess the level of risk posed by the disability, which includes consideration of
- the probability that harm will occur
- the imminence of the potential harm
- the duration of the risk
- the severity of the potential harm
The EEOC advised health care providers to describe relevant medical events or behaviors that could occur on the job (such as a loss of consciousness or nausea) and the probability that they will occur. The EEOC also cautioned that a health provider may need more details about the employee’s job to determine the appropriate information to provide and advised providers to ask employers for information about the type of work to be performed in order to make an accurate assessment.
While the EEOC’s guidance does not have the force of law or change any existing law, employers nevertheless should take note. The agency explains its interpretation with respect to opioid-related disabilities and its expectations regarding an employer’s obligation to provide reasonable accommodations for such disabilities. The guidance also is pertinent to those in the health care profession who find themselves providing medical information to employers as well as to employers evaluating such medical documentation as part of the accommodation process.