Last week the Equal Employment Opportunity Commission (EEOC) released two new technical assistance documents regarding employee opioid use and the Americans with Disabilities Act (ADA). While neither document sets new policy, they do provide clarifications that may be helpful to employers determining how to accommodate the current or past use of opioids in the workplace. The assistance may also help employers avoid discrimination under the ADA. Finally, they provide guidance to health care providers who are providing documentation as part of the reasonable accommodation process.
In the first technical assistance document, Use of Codeine, Oxycodone, and Other Opioids: Information for Employees, provides employees clarification on the legal and non-legal use of opioids in the workplace, as well as employees’ rights under the ADA. The technical assistance document makes it clear that employers can take actions against employees who illegally use opioids. However, if an employee is using opioids lawfully, an employer cannot automatically disqualify the employee without considering if there is a way for the employee to do the job safely and effectively. The EEOC also states that opioid addiction is a recognized disability, which an employer may have a duty to reasonably accommodate. The technical assistance document further states that an employer may remove an employee from the job for safety reasons, so long as the evidence shows that the employee poses significant and substantial harm, but cannot remove an employee from the job if the employee only poses a remote or speculative risk of harm.
In the second technical assistance document, How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed, the EEOC provides health care providers guidance regarding their role under the ADA when a patient who uses opioids needs a reasonable accommodation and when questions arise about the patient’s ability to perform a job safely. Specifically, the technical assistance document provides guidance on the type of documentation that will most likely support a request for a reasonable accommodation and how that documentation will be used. The EEOC also explains what type of information a health care provider should provide if the employer is concerned about the employee posing a safety concern. For example, if an employee poses a direct threat, employers need information that will help them assess the level of risk posed by a disability, taking into account the probability that harm will occur, the imminence of the potential harm, the duration of the risk, and the severity of the potential harm. To do this, health care providers should include information about relevant medical events or behaviors that could occur on the job and state the probability that they will occur. Health care providers should also describe any safety precautions that would reduce the chances that the medical event or behavior will occur.
Based upon these new technical assistance documents, employers are encouraged to initiate the reasonable accommodation process whenever requested by an employee who lawfully uses opioids, is in treatment for opioid addiction, or who has a medical condition related to opioid addiction, regardless of safety concerns. To ensure they receive the most helpful information possible, employers are also best off, including a copy of an employee’s job description with a medical inquiry form, as well as expressing any concerns about the employee’s ability to perform their job safely. For a copy of our recommended medical inquiry form, please click here.
Opioid use or addiction in the workplace is a tricky subject. We encourage members to reach out to us whenever they have a question.