Recent federal guidelines remind employers that workers with opioid use disorder (OUD) who are in treatment or recovering are protected from employment discrimination under the Americans with Disabilities Act ( ADA).
“The opioid epidemic continues to pose an extraordinary challenge to communities across our nation, and the COVID-19 pandemic has exacerbated that crisis,” said Kristen Clarke, assistant attorney general for the Department of Civil Rights Division at the Department of Justice. Justice (DOJ). “People who have quit illegal drug use should not be discriminated against when accessing evidence-based treatment or continuing their journey of recovery.”
The guidance reminds employers that OUD is considered a disability under the ADA and that employers may need to make certain accommodations, said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, NJ.
The ADA prohibits businesses with 15 or more employees from discriminating against workers with disabilities and requires employers to seek reasonable accommodations that would help covered workers perform the essential functions of their jobs.
The DOJ noted on April 5 that the guidelines are “part of the department’s overall response to the opioid crisis, which promotes prevention, enforcement and treatment.”
The guidance is intended to reduce the stigma associated with OUD and provide protections for employees who seek appropriate treatment, according to Adam Sencenbaugh, attorney at Haynes Boone in Austin and San Antonio, Texas. “Employers should ensure supervisors are trained to recognize that employees with opioid use disorder are disabled and can request accommodations under the ADA,” he said.
Drug testing policies
The ADA’s three-part definition of “disability” includes the following:
- A real disability, which is a physical or mental impairment that significantly limits a major life activity.
- A story or record of a real handicap.
- The perception that a worker has a disability or is considered as having a disability.
Therefore, the law protects workers with a history of illicit drug use who:
- Have been successfully rehabilitated and no longer use illegal drugs.
- Are currently in a rehabilitation program and are no longer using illegal drugs.
- Are mistakenly considered to be users of illicit drugs.
“The DOJ has been careful to note that employees are not protected from disciplinary action taken for illegal drug use,” said Angela Johnson, an attorney at Faegre Drinker Biddle & Reath in Indianapolis.
For example, if an employee violates a uniformly enforced workplace policy by reporting to work impaired from illegal opioid use, termination is likely justifiable. “Illegal use” could mean that the opioids were not prescribed to the employee or that the employee’s use exceeded the prescribed amount.
“The latter can be difficult for employers to prove, and labor counsel can help employers navigate around legal risks,” Johnson said.
Employers are allowed to have substance abuse and drug testing policies that help ensure workers are not currently using illegal drugs. However, employers must ensure that their drug testing policies do not illegally target employees taking prescription drugs to treat their addiction, Sencenbaugh said.
The DOJ noted that some workers who test positive for an opioid — which can include medication for OUD — can take the drug as prescribed by a licensed healthcare professional who is supervising the treatment.
“These people cannot be denied or terminated employment for this lawful use of drugs, unless they cannot do the job safely and effectively, or are disqualified under another law. Federal,” the DOJ explained.
Accordingly, employers should have a statement in their policies that gives workers the opportunity to explain a positive drug test, Mastroianni said.
Advice for employers
While the guidelines don’t change the underlying law, they do indicate that employers need to be more careful in recognizing and accommodating employees with opioid use disorders, Sencenbaugh said. This includes recognizing that employees recovering from OUD are legally protected under the ADA and taking steps to reduce the stigma around seeking appropriate addiction treatment.
Employers should also be aware of the risks of “associative” discrimination, he noted. Thus, employers should ensure that managers are trained to avoid discrimination against employees with friends or family who suffer from addiction.
Mastroianni said employers should avoid a “gut reaction” that may be unfair or illegal when they find out a worker is undergoing treatment or recovering. Don’t assume someone is going to relapse and don’t take adverse employment action without consulting legal counsel, she said.