
Michael J. Sheppeard
Partner
212-784-6939 msheppeard@sh-law.comFirm Insights
Author: Michael J. Sheppeard
Date: September 29, 2020
Partner
212-784-6939 msheppeard@sh-law.comAlthough COVID-19 remains a top compliance concern for New York and New Jersey employers, it’s important to remember that regulators continue to address a wide range of other issues. On August 5, 2020, the Equal Employment Opportunity Commission (EEOC) released new guidance regarding opioid addiction and employment.
Opioid misuse and associated overdoses have become a public health crisis over the past several years. By definition, “opioids” include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine, as well as illegal drugs like heroin.
In 2016, opioid overdoses accounted for more than 42,000 deaths, more than any previous year on record. Of the overdose deaths, approximately 40% involved a prescription opioid. Data collected in 2018 data shows that 128 people in the United States die after overdosing on opioids every day.
The opioid crisis does not just impact drug users and their families. According to the Centers for Disease Control and Prevention estimates that the total “economic burden” of prescription opioid misuse alone in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement.
Opioids are also a concern for employers. Substance use disorder impacts workplace safety, health care costs, productivity, absenteeism, and job performance.
The EEOC’s recent guidance, Use of Codeine, Oxycodone, and Other Opioids: Information for Employees, addresses how employers must address opioid use by employees under the ADA. It makes clear that current illegal drug use is not a covered disability. Accordingly, if a worker is using heroin or opioid medication without a valid prescription, the ADA does not prohibit employers from firing employees, denying employment to job applicants, or taking other negative employment actions based on the current illegal use of drugs.
Conversely, workers who are lawfully using opioid medication, are in treatment for opioid addiction and are receiving Medication-Assisted Treatment (MAT), or have been in recovery for their addiction, are protected from discrimination under the ADA. Accordingly, if an employee’s opioid use is legal, employers can’t automatically disqualify the employee because of opioid use without considering if there is a way for the employee to perform the job safely and effectively. In such cases, employers may be required to provide a reasonable accommodation.
Below are several other key takeaways from the EEOC guidance:
The EEOC also published additional guidance aimed at health professionals. The document, entitled “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” addresses patients’ legal rights in the workplace. As the EEOC notes, medical providers are often key participants in the interactive process between employers and workers as employers seek to understand the employee’s condition and potential need for reasonable accommodation. The fact sheet provides an overview of ADA coverage and offers guidance to health care workers seeking to provide documentation of covered disabilities on behalf of their patients.
While opioid-related deaths declined in 2019, health experts expect that the ongoing COVID-19 pandemic will fuel the crisis. To maintain a healthy workplace, employers should encourage workers to use their health insurance as well as any available Employee Assistance Program (EAP) to address their mental or chemical health needs. Employers may also want to consider policies and procedures that promote overall wellness and self-care, support long-term recovery, and seek to reduce stigma surrounding drug use for those seeking assistance. With regard to regulatory compliance, it is important that employers understand their obligations under laws like ADA. As the EEOC guidance highlights, employers have certain obligations to accommodate an employee’s opioid use and treatment for opioid addiction under the law.
If you have any questions or if you would like to discuss the matter further, please contact me, Michael Sheppeard, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
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