The EEOC Releases Guidance on Legal Opioid Use and Reasonable Accommodations

Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) released two new documents addressing concerns about the employment provisions of the Americans with Disabilities Act (ADA) and opioid use. Employers need to be aware of how to handle employee requests to accommodate both physical and mental health issues stemming from current or past opioid use, as well as how to verify legal use.   

The EEOC defines “opioids” as prescription drugs such as codeine, morphine, oxycodone, hydrocodone, meperidine, and illegal drugs like heroin. The first category also includes buprenorphine and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment (MAT) program. Both new EEOC documents distinguish between legal and illegal use of any of the above drugs. 

The first document, “Use of Codeine, Oxycodone, and Other Opioids,” makes clear that employers cannot discriminate against those legally using medication —or anyone in treatment (including MAT) or in recovery from addiction. It offers practical guidance on the use and potential misuse of opioids by employees, which is particularly important for employers dealing with requests for reasonable accommodations. The document explains that an employer may be required to hold a job open while the employee is in treatment/recovery for opioid addiction.  Employers need to be vigilant about accommodations as well, as they would with any disability. Companies should address requests thoroughly, such as time requested to attend addiction counseling. If legal opioid use renders an employee permanently unable to perform the job, an employee can ask to be reassigned to perform a different function, sometimes with a reasonable accommodation. To the extent an employer has a safety concern about the employee or co-workers (which could vary widely depending on job function), employers are allowed to seek medical evaluations if necessary, but are never required 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.”  Ultimately, if presented with objective evidence that an employee poses a “significant risk of substantial harm,” companies can deny an accommodation. Employers also still can require drug tests, and allow any employee with a positive drug test to provide information showing that their drug use is lawful. Illegal drug use, however, is never a covered disability, and employers can fire or take adverse action against those abusing opioids, regardless of their performance.  

The second document, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” gives medical providers guidance on the interactive process. It offers recommendations to assist medical professionals in providing the documentation necessary for employers to evaluate accommodation requests, and to determine whether an employee is a safety risk. Employers who have any of these concerns should review this document and be sure to request all information necessary to make a determination about job safety, depending on the specific environment. This means taking into account the probability that harm could occur, the imminence of potential harm, the duration of the risk, and the severity of the potential harm. The document gives tips on how best to quantify these factors.  

Increased opioid use and abuse in recent years affects the workplace, and presents a number of challenges. These documents provide clarity about existing legal requirements and assistance to employers navigating reasonable accommodations. Although neither guide is legally binding (nor do they change existing law), they’re still a valuable resource. Employers preparing to evaluate opioid related requests for accommodations should review each document carefully.