One of the toughest dilemmas facing employers today is how to deal with the fallout from employee drug abuse, which authorities say has grown substantially in the wake of the Coronavirus pandemic, and the physical pain and psychological distress that have resulted from the illness’s widespread impact on the population.
One issue that has arisen is how employers can wend their way through the thicket of laws and regulations that apply to this issue. In this regard, the U.S. Department of Justice (DOJ) has provided a timely guidance for employers on how to deal with opioid use disorder (OUD) under the Americans with Disabilities Act (ADA). But that guidance raises almost as many questions as it answers.
DOJ says that drug addiction is considered a disability under the ADA—but only as long as the individual is not currently using illegal drugs. The ADA regulations define “current illegal use of drugs” as the “illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.”
Fiona W. Ong, an attorney with the law firm of Shawe Rosenthal, points out that what this actually means has never been made completely clear. Some courts in the past have taken the position that the employee must have completed treatment and been “clean” for some significant period of time.
“However, the DOJ, as well as the Equal Employment Opportunity Commission (EEOC), are taking a more aggressive approach to the definition,” Ong explains. “Thus, the DOJ states that, although those engaged in the current illegal use of drugs are not protected by the ADA, those in treatment or recovery from OUD are.”
As a result, Ong says that DOJ has staked out the following positions:
- The ADA protects individuals who are taking legally prescribed medications for opioid use disorder (“MOUD,” i.e., methadone, buprenorphine or naltrexone) under the supervision of a licensed healthcare professional to treat OUD.
- The ADA also protects individuals currently participating in a drug treatment program.
- Those with a history of past OUD are also protected by the ADA, since the ADA protects individuals with a “record of” disability.
- In addition, those who are “regarded as” having OUD are also protected by the ADA. The DOJ offers the example of an employer believing an employee has OUD because the employee uses opioids legally prescribed by her physician for pain. If the employer fired that employee, it would be a violation of the ADA.
- Employers may have a drug policy and conduct drug testing for opioids. However, an employee who tests positive because they are taking legally prescribed opioids may not be fired or denied employment based on their drug use, unless they cannot do the job safely and effectively or they are disqualified under another federal law (such as Department of Transportation regulations).
In regard to the last point, Ong points out that although the DOJ guidance does not address it, the EEOC guidance on this topic for employees (there is no EEOC guidance for employers) makes it clear that employees taking legally prescribed opioids may be entitled to a reasonable accommodation, if the medical condition causing the pain requiring the use of such medication constitutes a disability.
“Such accommodation could include allowing the use of opioid medications, although as noted above, such use cannot prevent the safe and effective performance of the job or violate some other law,” she says. “But even in that case, employers may need to consider transferring the employee to an open position that would permit such use, if no other reasonable accommodation is available.”
According to Ong, employees also may be entitled to a reasonable accommodation to avoid relapse, such as securing scheduling changes to allow the employee to attend a support group meeting or therapy session.
“Thus, it is important that if an employee is taking MOUD or is in other treatment, or if they are taking legally prescribed opioids, that the employer engage in an interactive discussion to ascertain if a reasonable accommodation is available,” she stresses.
In addition, employers should be aware that the EEOC has taken the position that employees also may be entitled to take leave under the Family and Medical Leave Act (FMLA) for their treatment or recovery.