EEOC Issues Guidance on Opioid Use by Employees

Excerpted from Lexology by Barnes & Thornburg LLP

The Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents this week concerning opioid use by employees and accommodation issues under the Americans with Disabilities Act (ADA). The two documents are not binding and do not make any changes to existing law. Rather, they are meant to “provide clarity to the public regarding existing requirements under the law or agency policies.”

The first document provides information for employees, and the second document provides information for healthcare providers. However, employers would be well served to review both documents, as they provide an understanding of how employers should handle opioid-related accommodations.

Opioids include prescription drugs such as codeine, morphine, oxycodone (OxyContin, Percodan, Percocet), hydrocodone (Vicodin, Lortab, Lorcet), and meperidine (Demerol), as well as illegal drugs like heroin. They also include buprenorphine (Suboxone or Subutex) and methadone, which can be prescribed to treat opioid addiction.

The EEOC documents clarify that the ADA allows employers to fire employees or take other adverse employment actions based on illegal use of opioids, regardless of whether an employee exhibits performance problems. However, if an employee is using opioids legally pursuant to a prescription, including a prescription for opioid addiction, employers may not take adverse action unless they first consider whether the employee can perform safely and effectively.
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