EEOC Issues New Guidance on Opioid Use and the ADA

SUMMARY

The Equal Employment Opportunity Commission issued two sets of guidance last week, one to employees and one to health care providers, addressing various issues under the Americans with Disabilities Act relating to reasonable accommodation of opioid use in the workplace.

THE UPSHOT

• The first guidance issued by the EEOC, Use and Misuse of Codeine, Oxycodone, and Other Opioids: Information for Employees, explains to employees that employers may terminate an employee’s employment or take other adverse action based on an employee’s illegal drug use. However, if employees have a prescription for opioid medication or if they are recovering or recovered opioid users, they may seek reasonable accommodations under the ADA.
  
  
• The EEOC simultaneously released How Health Care Providers Can Help Current and Former Patients Who Have Used or Misused Opioids Stay Employed, which is directed to health care providers. This guidance offers an outline of how health care providers can prepare documentation to support an employee’s request for a reasonable accommodation based on legal use of opioids. It provides practical examples of reasonable accommodations, a description of the information that should be included in documentation provided by the health care provider in response to employer requests, and recommendations for drafting a response to employer inquiries.

THE BOTTOM LINE

Although these EEOC documents are not binding, they provide clarity as to how the EEOC will approach these issues and how the EEOC expects employers and employees to interact and exchange information. Employers should review this information and ensure that they are making employment decisions in line with this guidance.

FULL ALERT

Last week, the Equal Employment Opportunity Commission (EEOC) issued two sets of guidance, one to employees and one to health care providers, addressing various issues under the Americans with Disabilities Act (ADA) relating to reasonable accommodation of opioid use in the workplace.

Guidance Aimed at Employees

The first guidance issued by the EEOC, entitled “Use and Misuse of Codeine, Oxycodone, and Other Opioids: Information for Employees,” explains to employees that employers may terminate an employee’s employment or take other adverse action based on an employee’s illegal drug use. However, if employees have a prescription for opioid medication, or if they are recovering or recovered opioid users, they may seek reasonable accommodations under the ADA.

According to the EEOC, a reasonable accommodation is a change in the way that a job is normally performed, such as “a different break or work schedule (e.g., scheduling work-around treatment), a change in a change in shift assignment, or a temporary transfer to another position.” Reasonable accommodations can include many things, and employees may request (and employers may suggest) various other changes to the job. Significantly, this guidance reiterates that, in exploring reasonable accommodations, the employer is not required to change performance standards or expectations, eliminate essential job functions, compensate for work that is not completed, or excuse illegal drug use.

The onus to request a reasonable accommodation is on the employee. The employer is entitled to request a letter from the employee’s health care provider that substantiates the ADA disability and the reasons why the employee requires a reasonable accommodation. In the end, if the reasonable accommodation would allow the employee to properly and safely perform the essential job functions, and it does not cause undue hardship for the employer, then the employer must provide the accommodation. The guidance is also clear that the employer is not obligated to provide the exact accommodation being requested by the employee. The employer can explore alternative accommodations to the one being requested.

The EEOC’s guidance also addresses the added wrinkle of drug testing. The EEOC indicates that employees subject to drug testing should be given an opportunity to explain any lawful opioid use that could lead to a positive test result. If the employee is using opioid medication legally, but the employer is concerned about safety, the employee may request a reasonable accommodation, as outlined above. If the employer is still concerned about safety, it may ask the employee to undergo a medical examination to gather objective information about what the employee can safely do. The employer can then use that objective information to determine whether the employee poses a “direct threat,” i.e. a significant risk of substantial harm to the health or safety of the individual or others, and that risk cannot be eliminated or reduced with a reasonable accommodation. If the employer can establish that the employee poses a direct threat, no accommodation need be made and the employer can terminate the employee.

Guidance Aimed at Health Care Providers

The EEOC released “How Health Care Providers Can Help Current and Former Patients Who Have Used or Misused Opioids Stay Employed” simultaneously. It is directed to health care providers. This guidance offers an outline of how health care providers can prepare documentation to support an employee’s request for a reasonable accommodation based on legal use of opioids. It provides practical examples of reasonable accommodations, a description of the information that should be included in documentation provided by the health care provider in response to employer requests, and recommendations for drafting a response to employer inquiries.

The guidance also emphasizes the importance of a health care provider’s safety assessment, as it helps employers determine whether an employee presents a “direct threat.” To that end, the EEOC suggests that health care providers assess any risks that a patient’s condition may present in light of the type of work the patient performs on a day-to-day basis; the type of equipment they use; their 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. With that detailed information in hand, an employer can properly assess whether there is a significant risk of substantial harm to the employee or others, which cannot be eliminated or reduced by the provision of a reasonable accommodation. If that is the case, the employer would be entitled to terminate the employee. 

Although these EEOC documents are not binding, they provide clarity as to how the EEOC will approach these issues and how the EEOC expects employers and employees to interact and exchange information. Employers should review this information and ensure that they are making employment decisions in line with this guidance.

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