PELRAS Update | August-September 2020 – EEOC Releases Guidance on Employee Use of Codeine, Oxycodone and Other Opioids

Julie A. Aquino, Esq., Campbell Durrant, P.C. | August-September 2020

Opioid medications are often prescribed legally but are tied to addiction problems and may impact the safe performance of job duties. For this reason, the EEOC recently released guidance clarifying the agency’s views regarding opioid addiction and employment discrimination, a full copy of which is available on the EEOC’s website. “Opioids” include prescription drugs, among others, such as codeine, morphine, oxycodone, hydrocodone, Oxycontin, Percocet, Demerol and Vicodin. “Opioids” also include Suboxone or Subutex and methadone, which are prescribed to treat addiction in a Medication Assisted Treatment (“MAT”) program.

The EEOC’s guidance confirms that the agency views opioid addiction as a diagnosable medical condition that may be covered as a “disability” under the Americans with Disabilities Act (“ADA”).  Title I of the ADA does not provide employment discrimination protection to current users of illegal drugs. However, the ADA does provide protection based on past addiction to legal or illegal drugs or current addiction to legal drugs. For those protected under the ADA, including current users of legal opioid medication, the employer may be required to consider reasonable accommodations. The typical accommodation request related to addiction or substance abuse is a modified work schedule, or intermittent time off to attend therapy or support group meetings.

With respect to MAT programs, the guidance states that an employer may not deny employment solely because the employee is in a MAT Program, unless the employee “cannot do the job safely and effectively” or is “disqualified under another federal law.” If the employer believes an employee’s legal opioid use presents a safety risk or hinders effective job performance, the employer may be required to engage in the interactive process and consider reasonable accommodations that would enable the person to safely and effectively perform the job.

The EEOC’s guidance does not change the general principle that an employee who tests positive for an illegal substance on a drug test loses protection under the ADA due to current, illegal drug use. For all drug testing, however, the Medical Review Officer should confirm that the employee was not taking prescription medication legally that could have caused the positive result, which is standard procedure for medical review officers.

The ADA interactive process typically involves the employer obtaining information from the employee’s health care provider. The EEOC’s guidance includes suggestions for information that should be solicited in the context of opioid addiction. For example, the guidance suggests that it is not sufficient for the provider to simply state restrictions such as “no operating heavy machinery.” Rather, the provider “should describe relevant medical events or behaviors that could occur on the job (e.g., a loss of consciousness or nausea), and state the probability that they will occur.” Although the EEOC’s guidance does not have the force of law, it confirms that the ADA provides no protection for current illegal drug users, but does prohibit discrimination against an applicant or employee who is “disabled” due to legal opioid use, and thus requires the employer in that circumstance to engage in the interactive process under ADA. Employers who have questions about the interactive process and reasonable accommodations, including scenarios where a safety threat is presented, should consult with their legal counsel for guidance.