Excerpted from a Shawe Rosenthal LLP Blog by Fiona W. Ong
In the context of the opioid crisis, the U.S. Department of Justice (DOJ) has issued Q&A guidance on how the Americans with Disabilities Act (ADA) may apply to those in treatment for or recovery from opioid use disorder (OUD). The DOJ makes several points of significance to employers.
The DOJ asserts that drug addiction is a disability under the ADA, as long as the individual is not currently using illegal drugs. The ADA regulations define “current illegal use of drugs” as the “illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.”
What this actually means has been unclear, with some courts in the past taking the position that the employee must have completed treatment and been “clean” for a period of time. However, the DOJ, as well as the Equal Employment Opportunity Commission, are taking a more aggressive approach to the definition. Thus, the DOJ states that, although those engaged in the current illegal use of drugs are not protected by the ADA, those in treatment or recovery from OUD are. Specifically:
- • The ADA protects individuals who are taking legally prescribed medications for opioid use disorder (methadone, buprenorphine, or naltrexone) under the supervision of a licensed health care professional to treat OUD.
• The ADA also protects individuals currently participating in a drug treatment program.
• Those with a history of past OUD are also protected by the ADA, since the ADA protects individuals with a “record of” disability.
• In addition, those who are “regarded as” having OUD are also protected by the ADA. The DOJ offers the example of an employer believing an employee has OUD because the employee uses opioids legally prescribed by her physician for pain. If the employer fired that employee, it would be a violation of the ADA.
• Employers may have a drug policy and conduct drug testing for opioids. However, an employee who tests positive because they are taking legally prescribed opioids may not be fired or denied employment based on their drug use, unless they cannot do the job safely and effectively or they are disqualified under another federal law (such as Department of Transportation regulations).
Notably, on this last point, although the DOJ guidance does not address it, the EEOC guidance on this topic for employees makes clear that employees taking legally prescribed opioids may be entitled to a reasonable accommodation, if the medical condition constitutes a disability.
Such accommodation could include allowing the use of opioid medications, although such use cannot prevent the safe and effective performance of the job or violate some other law. But even in that case, employers may need to consider transferring the employee to an open position that would permit such use, if no other reasonable accommodation is available.
It is important that if an employee is taking opioids or in other treatment, or if they are taking legally prescribed opioids, that the employer engage in the interactive discussion to ascertain if a reasonable accommodation is available. Additionally, as the EEOC notes, employees may also be entitled to take leave under the Family and Medical Leave Act for treatment or recovery.
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