PELRAS Update | June 2022 – U.S. Department of Justice Issues Guidance on Application of Americans with Disabilities Act (ADA) to Persons with Opioid Use Disorders

Peter J. Halesey, Esq., Campbell Durrant, P.C. | June 2022

The ongoing opioid crisis has created numerous challenges over diverse sectors of the law. In the labor and employment realm, employers struggle to achieve clarity on their obligations to employees who may need treatment or may be in recovery from opioid use disorders. Recently, the United States Department of Justice (DOJ) issued a guidance document on the application of the Americans with Disabilities Act (ADA) to those individuals who are treating for, or are in recovery from, opioid use disorder.

In its guidance document, styled in a question-and-answer format, DOJ provided guidance on certain aspects of opioid use disorder under the ADA that may be of particular relevance to employers. As an initial point, absent certain limited exceptions, the ADA does not provide employment protection to an employee who suffers an adverse employment action because of their current illegal drug use. Under federal regulations, current illegal use of drugs is defined as, “the illegal use of drugs that occurs recently enough to justify a reasonable belief that a person’s drug use is current, or that a continuing use is a real and ongoing problem.” Notably, illegal use does not include the taking of a medication, including an opioid, used to treat opioid use disorder, under the supervision of a licensed health care professional.

Courts have taken different positions on the definition of “current illegal use of drugs.” For example, in the Third Circuit “current” drug use includes illegal drug use that bears a temporal relationship to the employment action such that an employer may reasonably conclude at the time of the employment action that illegal drug use is an ongoing problem.” Law v. Garden State Tanning, 159 F. Supp. 2d 787, 793 (E.D. Pa. 2001). Per the new DOJ guidance, individuals who are enrolled in a treatment program are protected so long as they are not currently using drugs. Thus, the guidance signals disapproval of the “temporal relationship” standard developed by the Third Circuit.

Pursuant to the DOJ guidance, the ADA protects individuals who are taking legally prescribed medication to treat opioid use disorder so long as the individual is not engaged in the illegal use of drugs. As long as the medication is being used under the supervision of a licensed health care professional, then the individual is protected under the ADA. According to the guidance document, this would also include both medications for opioid use disorder (e.g. methadone, buprenorphine, or naltrexone – which have been approved by the Food and Drug Administration) as well as mediation assistance treatment, which refers to the treatment of opioid use disorder or other substance use disorders by combining counseling and behavioral therapies with the use of FDA approved medications. Additionally, according to the guidance document, the ADA protects individuals with opioid use disorder who are currently participating in a supervised rehabilitation or drug treatment program so long as they are not currently engaging in the illegal use of drugs.

One of the more difficult concepts for employers to grapple with is the rights of an individual under the ADA if that individual has a history of opioid use disorder, or is someone who is regarded as having an opioid use disorder. Both of these individuals are protected under the ADA. By way of example, it would be illegal for an employer to terminate an employee based on the employee’s disclosure that they completed a treatment program for a previous addiction to prescription opioids. Additionally, where an employer mistakenly believes that an employee has an opioid use disorder because an employee utilizes opioids which have been legally prescribed by their physician, the employer would violate the ADA if they fired the employee based on that mistaken belief.

The DOJ guidance makes it clear that employers are permitted to conduct drug testing for opioids to ensure that employees are not currently engaging in the illegal use of drugs. However, individuals who test positive for opioids could show that the positive test result stemmed from their use of medication for the treatment of opioid use disorder, so long as the medication is being taken as prescribed by a licensed health care professional. The guidance further makes it clear that those individuals may not be terminated from their job for the legal use of medication unless they cannot do the job safely or effectively or are disqualified under another federal law.

In addition to the aforementioned DOJ guidance, EEOC guidance states that employees taking legally prescribed opioids could be entitled to reasonable accommodations if the medical condition causing pain and requiring the use of such medication constitutes a disability. The accommodation could include the employer permitting the use of an opioid medication, however such use could not prevent the employee’s safe and effective performance of their job. One potential accommodation could be the employer transferring the employee to an open position that would permit such use if no other reasonable accommodation is available.