In non-COVID-19-related news, last week, the Equal Employment Opportunity Commission (EEOC) released technical guidance on managing opioid addiction in the workplace. As opioid use and abuse increases nationally, the unique challenges these issues present in the workplace prompted this guidance.
The guidance, which includes a Q&A on employee opioid use, fills in some gaps about how prescription opioid use and addiction impact the workplace and compliance with the Americans with Disabilities Act (ADA).
The guidance focuses mainly on whether an employee is legally allowed to take an opioid and whether it’ll impact the employee’s performance or safety on the job.
For example, the first Q&A focuses on whether and how an employer may disqualify someone from a job based upon current or past opioid use. Discussing the ADA, the guidance states that an employer may fire, or take other negative employment actions against, someone based upon their current, illegal opioid use. If an employee is legally using opioids, then the employer may have to explore reasonable accommodations.
Other questions focus on how an employer can manage job performance and safety for current or former opioid users.
The guidance reminds employers that when an employee is legally using opioids to treat a medical condition, became addicted to opioids due a medical condition (e.g., depression or major PTSD) or is recovering from addiction, they may be eligible for a reasonable accommodation. The key takeaway for employers is to engage in the interactive process to determine if a reasonable accommodation exists to help an employee safely perform the essential functions of their job.
An employer doesn’t have to lower production or performance standards, eliminate essential functions, tolerate unsafe work performance or excuse illegal drug use as a reasonable accommodation. However, employers may have to reasonably accommodate an employee with opioid use issues with a flexible work schedule, change in shift assignment, temporary transfer to another position, reassignment and even a leave of absence. The appropriate accommodation will depend on each individual circumstance.
The EEOC guidance doesn’t alter the law, or the EEOC’s interpretation of the law; however, it does provide some more concrete guidance for employers working with employees who are lawfully taking opioids or fighting an opioid addiction.
Employers are encouraged to consult with legal counsel with any questions on appropriate accommodation as well as prior to taking any negative employment actions against an employee based upon opioid use.