Sanford Heisler Sharp is at the forefront of the movement holding the opioid industry accountable for the ruinous effects its drugs have had on people and governments throughout our country. This opioid work pits us against the companies that profited off the addictive potential of the drugs they peddled. New EEOC guidance indicates that our employment discrimination practice could soon be involved in defending those who are punished because they are recovering from opioid addiction under the Americans with Disabilities Act (“ADA”).
The EEOC emphasizes that although ongoing illegal drug use is not a disability covered by the ADA, those who are recovering from opioid addiction—either “cold turkey” or with the help of opioid medication— are protected from discrimination on the basis of their disability. This might seem a bit paradoxical, but opioid recovery is somewhat unique in that doctors will often prescribe opioids to those recovering from them, to save the patient’s life, to wean them off the drugs, or both.
Accordingly, if an employer treats an employee adversely simply because they formerly used opioids illegally, or because they are in a recovery program whose components include physician-prescribed opioid use, then these actions would likely violate the ADA, in addition to equivalent state and local protections for people with disabilities. However, the analysis becomes more complex if the individual uses prescribed opioids while on the job.
Under the ADA, an employer is required to offer reasonable accommodation for a person who has disabilities or is affiliated with a person who has disabilities. The EEOC takes the position that any individual who is taking an opioid medication under a physician’s direction may not be denied a job or fired from a job unless the employee cannot do the job safely and effectively. The employer is required to explore whether a reasonable accommodation would allow the employee using opioid medication to do their job safely and effectively.
Reasonable accommodations are extremely fact-specific inquiries, and what is reasonable or not will depend on the situation. An employer is not required to lower production or performance standards, eliminate any of the job’s essential functions, or pay the employee for work that they do not perform. Other than these caveats, reasonable accommodations may take many forms, including allowing the employee to work an atypical schedule, work another open position, or take extended unpaid leave to treat their opioid use disorder (“OUD”).
Opioid use has declined from its peak but still runs rampant throughout many parts of this country and in all industries. Employees should know that a part of illegal opioid use, from which they have broken, is not a valid reason for adverse action in the workplace, and that laws exist to protect their rights. And those who are battling OUD using opioid medication under the supervision of a physician should ask for a reasonable accommodation to allow them to keep their jobs.
Sanford Heisler Sharp is here to assist workers who have had their disability rights violated, and employees should feel free to contact us at any time.