ADA Addresses Discrimination of People Undergoing Treatment for OUD

The U.S. Department of Justice (DOJ) recently released guidance on how the Americans with Disabilities Act (ADA) covers people undergoing treatment for drug addiction amid an ongoing opioid crisis. Specifically, the guidance addresses how the ADA prohibits discrimination against individuals who are in recovery from opioid use disorder (OUD). It focuses on those not currently engaged in illegal drug use. Markedly, the principles addressed in the guidance also apply to people with other substance use disorders. Earlier, in March, the U.S. Equal Employment Opportunity Commission (EEOC) answered questions about the ADA and COVID-19.

The Americans with Disabilities Act

Signed into law in 1990, the ADA is a federal law that protects the civil rights of individuals with disabilities. Among the anti-discrimination rights it protects on behalf of people with disabilities are equal employment opportunities. Under the ADA, a covered individual must have a qualifying disability. According to the ADA, a person has a qualifying disability if:

• they have a physical or mental impairment that substantially limits one or more major life activities,
• the person has a history or “record of” such an impairment, or
• they are perceived by others as having such an impairment.

The ADA and People Undergoing Treatment for OUD

Under the ADA, section 12114, employees and applicants currently engaged in the illegal use of drugs may not qualify as protected individuals with disabilities. However, the ADA makes exceptions for those qualified individuals with disabilities who:

• successfully completed a supervised drug rehabilitation program and no longer use illegal drugs;
• are currently undergoing treatment in such a rehabilitation program and no longer using; or
• were erroneously regarded as engaging in use, when they are not using.

The ADA recognizes that individuals with OUD have an addiction (physical or mental impairment) that substantially limits one or more major life activities. Undoubtedly, impairments to major life activities for those with OUD may include an inability to:

• care for oneself,
• concentrate,
• communicate,
• work, or
• operate one or more major bodily functions.

Therefore, those with OUD typically have a disability. Hence, the ADA protects them from discrimination. Additionally, those with a history of OUD are also protected from discrimination under the ADA. However, qualified individuals with OUD must not currently be using and must be undergoing treatment for their addiction.

More Information on How the ADA Protects People Undergoing Treatment

The DOJ’s guidance document on the ADA and those undergoing treatment for OUD provides answers to additional frequently asked questions on the subject. The following information may be of particular interest to employers when complying with federal antidiscrimination laws within the ADA. Q: Does the ADA protect individuals who are taking legally prescribed medication to treat their OUD? A: Yes, as long as the individual is not engaged in the illegal use of drugs. The ADA does not consider prescribed medication used to treat OUD “illegal use of drugs.” However, the individual should take the prescribed medication under the supervision of a licensed health care professional. Q: Does the ADA protect individuals from discrimination based on their association with individuals who have OUD? A: Yes, the ADA prohibits discrimination against individuals based on their relationship to someone with OUD. Specifically, this includes a friend, family member, coworkers, and others. Q: Can employers institute a workplace drug policy or conduct regular drug testing for opioids? A: Yes, employers may institute reasonable drug policies or procedures for drug testing in the workplace. However, employers should understand that some individuals may test positive for prescribed treatment drugs, like medications for opioid use disorder (or MOUD). These individuals can show that a doctor prescribed the medication and that they are taking the MOUD under required supervision. As such, employers may not deny them employment or fire them from a job for this legal use of prescribed medication unless they cannot perform the job safely or are disqualified under other federal laws.

In Conclusion

Overall, the DOJ’s comprehensive approach to prevention, enforcement, and treatment concerning people with OUD in the workplace seeks to alleviate the workplace strains that the ongoing opioid crisis poses. As a part of this approach, the guidance serves as a reminder to employers that those with drug addictions who are undergoing treatment and not using are protected under the same statutes as other people with ADA disabilities.