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EEOC issues guidance to help employers and employees navigate opioid addiction

September 2, 2020

Related PeopleLoretto M. Kennedy

Practice AreasEmployment

The Equal Employment Opportunity Commission (EEOC) recently issued question and answer guidance to assist employees and employers in navigating the Americans with Disabilities Act (ADA)’s non-discrimination and reasonable accommodation provisions, as they apply to employees recovering from or legally using opioids. The information provided does not state any new policies, but instead is offered to explain and expand upon existing ADA statutory and regulatory provisions and previously issued guidance.

Employers have struggled with the practical reality of employing individuals who are using opioids, are addicted to opioids or have a history of opioid addiction. Many employers naturally have an interest in assisting employees working through their past addictions where the job can be performed satisfactorily and without compromising the safety of others. However, all employers must be conscious of their obligations under the ADA, which require them to consider reasonable accommodations and other protections for employees who face opioid challenges in performing the essential functions of their job.

The new EEOC guidance offers answers to questions such as:

  • Are recovering employees disqualified from certain categories of employment?
  • Does an employer have to accommodate the legal use of opioids?
  • How does an employer balance an employee’s legal use of opioids and the employer’s need to ensure a safe workplace for all employees?
  • Does an employer have to provide reasonable accommodations for medical conditions relating to opioid addiction?
  • What is the impact of a positive drug test when an employee claims to be lawfully using opioid medication?
  • Is opioid addiction, sometimes referred to as Opioid Use Disorder (OUD), a diagnosable medical condition that can be an ADA disability and therefore requires reasonable accommodation?

How does an employee go about requesting an accommodation related to opioid use and/or past addiction and what obligation does the employer have to provide the same?

During this COVID-19 pandemic, employees and employers are facing unique challenges. However, perhaps no cross section of the employee population is more vulnerable than those who have already faced the challenges of dealing with the use of codeine, oxycodone and other opioids.

Although there is not a cookie-cutter approach to individual workplace situations, the EEOC attempts with its new guidance to identify key issues and concerns. This guidance assists employees in understanding their rights, and helps employers realize their obligations to employees facing these challenges. The recent alert is by no means a complete road map to all the issues employees and employers face when addressing opioid related concerns, but it does identify key guidance on select issues as a means to assist the employee and employer in working together to move employment forward, when possible and appropriate.

Communication between an employer and employee regarding opioid challenges is central to the ADA’s required interactive accommodation review process. Employees and employers are directed to engage together in thoughtful and productive discussions about the challenges posed by the addiction and the job requirements to identify, if possible, reasonable accommodations to help the employees perform the essential functions of their position. Participants have found that the accommodations can be as simple as a different break or work schedule, a change in shift assignment, or a temporary transfer to another position, which allows an employer to retain an employee who has or is facing an opioid challenge, while still maintaining a safe and productive workplace.

For assistance in responding to and addressing your employment concerns, including steps to properly engage in the ADA required interactive review process, please contact one of Chuhak & Tecson’s Employment attorneys.

Client alert authored by Loretto M. Kennedy (312 855 5444), Principal.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.