EEOC Releases Guidance Clarifying Employee Opioid Use

On August 5^th, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document to address concerns about the employment provisions of the Americans with Disabilities Act (ADA) and the current opioid epidemic.

Guidance Summary

While making it clear that current illegal drug use does not qualify as a covered disability, the guidance clarifies that individuals who lawfully use opioid medication, currently receive treatment for opioid addiction and receive Medication Assisted Treatment (MAT), or have recovered from their addiction, qualify as protected from disability discrimination. The definition of “Opioids,” according to the EEOC, includes prescription drugs such as codeine, morphine, oxycodone (OxyContin®, Percodan®, Percocet®), hydrocodone (Vicodin®, Lortab®, Lorcet®), and meperidine (Demerol®), as well as illegal drugs like heroin. The designation of an opioid also includes buprenorphine (Suboxone® or Subutex®) and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment program. In addition, the document answers questions about reasonable accommodations that may be available to employees who currently legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job. The topics covered in the document include specific subjects such as:

• disqualification from a job;
• performance and safety; and
• protecting employee rights.

Employer Takeaway

The increase of opioid use and abuse in recent years has posed unique challenges to the workplace. By releasing this guidance, the EEOC aims to provide clarity to the public regarding existing legal requirements under the law when it comes to drug and opioid use as it relates to the workplace. The EEOC does make it clear, however, that this information does not represent new policy but instead applies principles already established in the ADA’s statutory and regulatory provisions as well as previously-issued guidance. The agency also wants employees to realize that they may have additional rights under other laws, such as the Family and Medical Leave Act (FMLA) and state or local laws.