EEOC: Firing worker for treating opioid addiction is discrimination

Excerpted from HR Dive By Lisa Burden

Dive Insight:

The “regarded as” element of the ADA’s definition of disability protects an individual from discrimination based on an employer’s belief that he or she has a disability. Establishing protection under that prong is based on “how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person’s impairment,” according to the EEOC.

Opioid abuse costs employers billions in lost productivity. A survey by The Hartford found that 76% of employers and 64% of HR professionals aren’t trained on how to deal with opioid addiction in the workplace.

Employers may gain insight as to the extent of opioid abuse in their workplaces by conducting claims analyses, according to a report from the International Foundation of Employee Benefit Plans, but only 30% of respondents reported having done so. Among those who had, 3% reported a significant increase in opioid-related claims from the year before, and 8% reported such a change over the past five years.

In dealing with recruitment and retention issues stemming from drug use, employers are adopting innovative solutions, such as seeking out employees with criminal records who are required to refrain from drug use as a condition of their parole or offering drug treatment to applicants who fail an initial screen. As more states legalize or decriminalize marijuana, some employers are reviewing whether to relax their zero-tolerance policies.

The National Business Group on Health has urged employers to communicate with their pharmacy benefit managers to ensure that strategies are put into place to better protect U.S. workplaces from the opioid crisis. More than half of businesses (51%) said they are using a prescription drug monitoring program or a pharmacy benefit manager to reduce the growing number of claims. Twenty-six percent are limiting the number of pain pills given out to post-surgery patients, and the same percentage are offering alternative pain management treatments.

Dive Brief:

• SoftPro, a software company headquartered in Raleigh, North Carolina, has agreed to pay $80,000 to settle a U.S. Equal Employment Opportunity Commission (EEOC) disability discrimination lawsuit after allegedly firing an employee for taking leave for inpatient treatment regarding substance abuse.
• The EEOC said that, when an IT worker with a history of opiate addiction who participated in a doctor-supervised medication-assisted treatment (MAT) took leave to admit himself to an inpatient treatment facility to eliminate the need for MAT, he was questioned about the reason for the leave upon his return and then fired. The worker’s employment was terminated because he was regarded as disabled — a violation of the Americans with Disabilities Act (ADA), the EEOC says.
• Under the three-year consent decree settling the lawsuit, SoftPro also agreed to revise, implement and distribute personnel policies stating that the company does not exclude employees based on their participation in a medication-assisted treatment program; to provide annual training to its HR team, managers, supervisors and employees; to post a notice regarding the settlement; and to report to the EEOC all negative actions the company takes against employees who have a record of substance abuse disorder or who are currently participating in or have successfully completed a drug rehabilitation program.