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New EEOC Q&As provide roadmap for ADA accommodations for opioid addiction

By Pamela Wolf, J.D.

One technical assistance document is targeted to employers; the other is meant for health care providers.

The EEOC on August 5 released two technical assistance documents (TADs) that address ADA concerns relevant to the opioid epidemic. In its press release, the federal antidiscrimination agency noted that “the increase of opioid use and abuse in recent years poses unique challenges to the workplace.”

The TADs are in question and answer form, with one targeted to employees, and the other to health care providers:

The Q&As carry a warning that their contents “do not have the force and effect of law and are not meant to bind the public in any way,” and that the guidance “is intended only to provide clarity to the public regarding existing requirements under the law.”

Employee information. Among other things, the TAD targeted to employees clarifies that current illegal drug use is not a covered disability. The Q&As also clarify that people who are lawfully using opioid medication, are in treatment for opioid addiction, and are receiving Medication Assisted Treatment (MAT), or have recovered from their addiction, are protected from disability discrimination.

The TAD also answers questions about reasonable accommodations that may be available to employees who currently legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job.

The Q&As are informative for employers as well as employees—here are some of the points they make:

  • Employers 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. An employer may do this by asking before the test is administered whether the person takes medication that could cause a positive result, or it may ask all people who test positive for an explanation.
  • Where an employer thinks that a person’s opioid use, history of opioid use, or treatment for opioid addiction could interfere with safe and effective job performance, so long as the person is not using opioids illegally and is not disqualified for the job by federal law, the employer may have to give the person a reasonable accommodation before firing them or rejecting their job application based on opioid use. Reasonable accommodations may include a different break or work schedule (e.g., scheduling work around treatment), a change in shift assignment, or a temporary transfer to another position.
  • An employer never has to lower 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.
  • An employee may be able to get a reasonable accommodation because of an addiction to opioids (opioid use disorder or OUD), which is itself a diagnosable medical condition that can be an ADA disability. Although the employee may be able to get a reasonable accommodation for OUD, the employer may deny accommodations where the employee is using opioids illegally, even if they have an OUD.
  • Where the employee has recovered from an opioid addiction but still needs a reasonable accommodation to help avoid relapse, the employee can get reasonable accommodations needed because of a disability that the employee had in the past, such as an altered schedule to attend a support group meeting or therapy session that will help the employee avoid relapse.
  • Employees may get reasonable accommodations for a medical condition related to opioid addiction if the condition is a disability. Medical conditions that are often associated with opioid addiction, such as major depression and post-traumatic stress disorder (PTSD), may be disabilities, for example.

For health care providers. The TAD intended for health care providers lays out information on legal rights in the workplace. 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. In addition to describing the coverage limits under the ADA, the Q&A provides guidance to health care workers seeking to provide documentation of covered disabilities on behalf of their patients.