By Mary C. Moffatt andRosalia Fiorello
On August 5, 2020, the Equal Employment Opportunity Commission (EEOC) issued two guidance documents regarding the interplay between the legal use of opioids and the employer’s obligations under the Americans with Disabilities Act (ADA). While the two guidance documents are directed towards employees and their healthcare providers, employers may be impacted by the guidance in responding to reasonable accommodation requests from employees and health care providers.
A. Use of Codeine, Oxycodone and Other Opioids: Information for Employees
In this guidance, the EEOC acknowledges that current illegal drug use is not considered a covered disability, but goes on to note that employees who are using opioid medication lawfully, are receiving medication-assisted treatment (MAT) for opioid addiction, or have recovered from their opioid addiction, are protected from disability discrimination under the ADA. Likewise, in Tennessee, these individuals would be protected from discrimination under the Tennessee Disability Act. The EEOC presents information to assist employees in requesting reasonable accommodations and maintaining employment when they are legally using opioids or are in an opioid addiction treatment program or have a history of using opioids. The purpose of the document is to explain the ADA nondiscrimination and reasonable accommodation provisions for individuals who are not engaged in illegal use of drugs and are qualified for employment. (To view this guidance, go to: www.eeoc.gov/laws/guidance/use-codeine-oxycodone-and-other-opioids-information-employees)
B. How Healthcare Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed
This EEOC guidance provides basic information to healthcare providers regarding reasonable accommodations under the ADA, with emphasis on educating providers on the issues faced by employees who legally use prescription opioids or who have been addicted to opioids in the past. However, the documentation goes further than simply providing education with respect to the ADA. For example, in a question-and-answer format, the EEOC states that “opioid use disorder (OUD) is itself a diagnosable medical condition that is likely to qualify as an ADA disability.” Of course, the guidance goes on to state that “there is an exception for people who are using heroin or opioid medication without a valid prescription – the ADA doesn’t stop employers from firing employees, denying employment to job applicants, or taking other negative employment actions based on the current illegal use of drugs.” Clearly, one of the purposes of the guidance is to encourage and assist healthcare providers in advocating for reasonable accommodations on behalf of their patients by giving examples of reasonable accommodations, outlining the circumstances where a reasonable accommodation might be necessary for an employee, and providing examples of certain documentation that would be of assistance to an employee in requesting a reasonable accommodation from his or her employer.
The Guidance also addresses safety concerns, but indicates it is not enough for a healthcare provider to provide the employer with restrictions such as “no operating heavy machinery.” The EEOC further notes that for an employer to decide whether an employee poses a direct threat, the employer needs information to assess “the level of the 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.” Adding to the complexity already present in the conundrum faced by employers with respect to reasonable accommodation requests under circumstances involving the ongoing use or previous of opioids, the EEOC guidance concludes by noting that “where relevant, consider and assess any risks your patient’s condition may present in light of the type of work your patient performs … the type of equipment he or she uses, his or her access to harmful objects or substances; any safeguards in place at the worksite; the type of injury or other harm that may result if one of the identified medical events or behaviors occurs; and the likelihood that injury or other harm would in fact occur as a result of the event or behavior. If you don’t have this information but think you need it to make an accurate assessment, you should ask the employer for it.” (To view this guidance, go to: www.eeoc.gov/laws/guidance/how-health-care-providers-can-help-current-and-former-patients-who-have-used-opioids)
While these documents do not have the force and effect of law, they clearly provide guidance to employees with respect to requesting reasonable accommodation, working with their healthcare provider to provide medical support for an accommodation, and the interplay between the ADA and various types of reasonable accommodations. For example, in responding to the question of “If I need a reasonable accommodation because of an ADA disability, does the employer have to give it to me?,” the EEOC answers this question as follows: “If a reasonable accommodation would allow you to perform the job safely and effectively, and does not involve significant difficulty or expense, the employer must give you one. If more than one accommodation would work, the employer can choose which one to give you. The employer is not allowed to charge you for the accommodation.”
An interesting scenario arises for employers involved in drug-free workplace programs and the interplay with workers’ compensation claims. A staggering 38% to 50% of all workers’ compensation claims are related to substance abuse in the workplace. (See: ‘Working Partners’, National Conference Proceedings Report: Sponsored by U.S. Dept. of Labor, the SBA, and the Office of National Drug Control Policy.) To combat the use of drug-related injuries in the workplace, many states have enacted Drug-Free Workplace Programs to promote safe worksites and increase productivity.
Tennessee, for example, has threshold limits for marijuana, cocaine, phencyclidine, amphetamines, Codeine / morphine, heroin, hydrocodone / hydromorphone, oxycodone / oxymorphone, and alcohol an individual can have in their system at the time of a work-related accident. If an employee tests above the threshold limits during a post-accident drug screening, employers receive a shift in the burden of proof in workers’ compensation claims involving a positive alcohol or drug test. This means it is presumed that the drugs or alcohol were the proximate cause of the injury, and benefits can be denied. There is also a presumption that the discharge or discipline of an employee, or the refusal to hire a job applicant, who is found to be in violation of the employer’s Drug-Free Workplace Program will be considered done for cause. This poses problems with the EEOC’s guidance as it pertains to maintaining employment for employees who legally use opioids but who, upon post-accident testing, test above the allowable threshold limits.
If your organization is part of a Drug-Free Workplace Program, work closely with your employment law attorney as there are many possible twists and turns, and receipt of good legal advice along the way can be invaluable. Whether an employer participates in the Tennessee Drug Free Workplace Program or not, it is vital to tread carefully when handling an employee’s on-going, legal use of opioids.
Bottom line, when addressing the use of opioids in the workplace, employers would be wise to seek guidance from an employment law attorney to assist in navigating through these challenging issues.
Mary C. Moffatt, Member
Wimberly Lawson Wright Daves & Jones, PLLC
[email protected]
www.wimberlylawson.com
Rosalia Fiorello, Associate
Wimberly Lawson Wright Daves & Jones, PLLC
[email protected]
www.wimberlylawson.com