ADA protects workers in treatment and recovery for opioid use

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Recent federal guidance reminds employers that workers with opioid use disorder (OUD) who are in treatment or recovering are protected from workplace discrimination under the Americans with Disabilities Act (ADA).

“The opioid epidemic continues to present an extraordinary challenge to communities in our country, and the COVID-19 pandemic has exacerbated that crisis,” said Kristen Clarke, assistant attorney general for the Department of Justice’s (DOJ) Division of Civil Rights. “People who have stopped using illicit drugs should not be discriminated against when accessing evidence-based treatment or continuing on their path to recovery.”

The guidance is intended to remind employers that OUD is considered a disability under the ADA and that employers may need to make certain accommodations, said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, NJ

The ADA prohibits companies with 15 or more employees from discriminating against workers with disabilities and requires employers to make reasonable accommodations that help covered workers perform the essential functions of their jobs.

The DOJ noted on April 5 that the guidelines “are part of the department’s overall response to the opioid crisis that promotes prevention, enforcement and treatment.”

According to Adam Sencenbaugh, attorney at Haynes Boone in Austin and San Antonio, Texas, the policy aims to reduce the stigma associated with OUD and provide protections to employees seeking appropriate treatment. “Employers should ensure that supervisors are trained to recognize that employees with an opioid use disorder are disabled and can request placements under the ADA,” he said.

Drug Testing Guidelines

The ADA’s three-part definition of “disability” includes the following:

  • A indeed Disability, which is a physical or mental impairment that significantly limits an important life activity.
  • a story or recording from an actual disability.
  • A perception that a worker has or is a disability considered as have a disability.

Therefore, the law protects workers with a history of illicit drug use who:

  • Have been successfully rehabilitated and no longer use illegal drugs.
  • You are currently in a rehabilitation program and no longer use illegal drugs.
  • Are mistaken for illegal drug users.

“The DOJ has carefully advised that employees are not protected from disciplinary action taken for illegal drug use,” said Angela Johnson, an attorney at Faegre Drinker Biddle & Reath in Indianapolis.

For example, if an employee violates a consistently enforced workplace policy by reporting to a work impaired by unlawful opioid use, termination is likely justifiable. “Illegal use” could mean that the employee was not prescribed the opioids or the employee’s use exceeded the prescribed amount.

“The latter can be difficult for employers to prove, and a labor counselor can help employers avoid legal risks,” Johnson said.

Employers are allowed to have substance abuse and drug testing policies that help ensure employees are not currently using illegal drugs. But employers should be careful that their drug screening policies don’t illegally target employees who are taking prescription drugs to treat their addiction, Sencenbaugh said.

The DOJ noted that some workers who test positive for an opioid — which may include medication for OUD — may be taking the drug as prescribed by a licensed physician supervising treatment.

“These individuals shall not be denied or fired from a job for this legal use of drugs unless they cannot safely and effectively perform the job or are disqualified under another federal law,” the DOJ said.

Accordingly, employers should have a statement in their policies that gives workers an opportunity to declare a positive drug test, Mastroianni said.

Tips for employers

While the guidance doesn’t change the underlying law, it does signal that employers need to be more cautious about recognizing and housing employees with opioid use disorders, Sencenbaugh said. This includes recognizing that employees recovering from OUD have legal protections under the ADA and taking steps to reduce the stigma of seeking appropriate substance abuse treatment.

Employers should also be aware of the risks of “association based” discrimination, he noted. Employers should therefore ensure that managers are trained to avoid discrimination against employees who have friends or relatives who are at risk of addiction.

Mastroianni said employers should avoid a “knee-jerk response” that may be unfair or illegal when they learn a worker is undergoing treatment or recovery. Don’t assume someone will relapse or take adverse employment legal action without consulting legal counsel, she said.

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