We sometimes get calls from clients regarding their obligations under the Americans with Disabilities Act (“ADA”) when an employee tests positive for opiates, which are not lawfully used, or discloses an opiate addiction, past or present. If statistics teach us anything, it is that opiate-related deaths in the United States are on the rise. As that occurs, employers are likely to have more and more questions about their obligations to employees.
On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released written guidance for employees about the opioid epidemic and their rights under the ADA. Although geared toward employees, the document provides helpful insight for employers. Here are the highlights.
Active Illegal Drug Use is Not Protected
Employees who are actively engaged in the illegal use of opioids are not considered disabled under the ADA. As a result, employers may terminate an individual based on their current illegal opiate use, even if the person does not have any performance or safety problems.
Employees in Recovery are Protected
Employees in recovery from illegal opioid use are considered disabled under the ADA. Accordingly, if an employee requests a reasonable accommodation to avoid relapse, an employer must engage in an interactive dialogue with the employee to identify reasonable accommodations that do not create an undue hardship to the business. For example, an employee may need predictable time off or an altered schedule to participate in Narcotics Anonymous meetings and an employer, depending on the circumstances, may have to grant such as a request as an accommodation.
Prescription Use of Opiates and Accommodation Obligations
Employees using prescription opiates to avoid relapse and for other reasons cannot automatically be disqualified from a job if they can perform the job safely and effectively under the ADA. The EEOC guidance encourages employees having difficulty performing their job based on their legal use of opiates, to request an accommodation. If an employee does so, the employer must engage in a dialogue with the employee to determine if there are any accommodations it could make. The EEOC makes clear, however, that “an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.”
Educate your Managers and Supervisors
The EEOC guidance explains to employees how to request an accommodation. Employers need to know that the initial accommodation request doesn’t have to be in writing, nor does it have to be made to a specific person or department, even if a company policy requires it. Instead, an employee can initiate the request verbally by making the request of a “supervisor, HR manager, or other appropriate person” as “employers can’t deny [an employee] a reasonable accommodation just because [an employee] did not follow specific procedures.” Employees do not have to have specific accommodations in mind either and someone else can make the request on their behalf.
Once an employer receives an accommodation request, it must have a dialogue with the employee to determine if the accommodation would allow the employee to perform the essential functions of the job without creating an undue hardship for the business. Each accommodation request is different so employers can’t take the exact same approach in every case.
Opiate use by employees can be difficult to manage. Employers need to be sure that their supervisors and managers get adequate training to learn how to handle illegal and legal opiate use by employees as well as to understand when an accommodation request is made and what they need to do in response. Missteps can be costly.
Employers interested in a virtual training for their supervisors on this, or any of our other training topics, or have questions regarding how to handle a specific situation, can feel free to contact any one of our attorneys for assistance.