Although 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.
EEOC Opioid Guidance
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:
- Positive drug tests: An employer should give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. According to the EEOC, an employer may do this by asking before the test is administered whether the employee is taking any medication that could cause a positive result, or it may ask all people who test positive for an explanation.
- MAT programs: If an employee is taking an opioid medication as directed in a MAT program, then the use of the medication is legal. Under the ADA, the individual can’t be denied a job or fired from a job because of participation in a MAT program unless he or she can’t do the job safely and effectively, or is otherwise disqualified under another federal law.
- Prescription opioids: Workers may be entitled to a reasonable accommodation if the medical condition that is causing pain qualifies as a “disability” under the ADA. As the EEOC notes, many conditions that cause pain significant enough for a doctor to prescribe opioids will qualify. Employees may also qualify for a reasonable accommodation if the opioid medication interferes with their everyday functioning.
- Opioid addiction: Opioid addiction (sometimes called “opioid use disorder” or “OUD”) is itself a diagnosable medical condition that can be an ADA disability. Other medical conditions that are often associated with opioid addiction, such as major depression and post-traumatic stress disorder (PTSD), may also be disabilities.
- Job safety and performance: If a reasonable accommodation would allow the employee to perform the job safely and effectively, and does not involve significant difficulty or expense, the employer must provide one. However, 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.
- Terminating employees: For workers who are using opioids illegally, employers must have objective evidence that the employee can’t do the job or poses a significant safety risk, even with a reasonable accommodation, for a termination to be lawful under the ADA. To remove an employee from the job for safety reasons, the evidence must show that the employee poses a significant risk of substantial harm.
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 questions, please contact us
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.