EEOC GUIDANCE ON OPIOID ADDICTION AND THE ADA

It is well known that the United States has an ongoing opioid addiction crisis.  The Equal Employment Opportunity Commission (EEOC) has issued two publications addressing this crisis.  These publications do not have the force of law, but they do represent a clear expression of the EEOC’s views.  While directed to employees and health care providers, we recommend employers read them as well.  The information communicated can aid employers, especially as courts continue to shine a light on the “interactive process” mandated by the Americans with Disabilities Act (ADA).

EEOC’s Assistance to Employees

Its first publication, “Use of Codeine, Oxycodone, and other Opioids: Information for Employees,” is designed to educate employees about how opioid use or addiction may be protected under the ADA.  The publication goes over some of the general rules, such as

  • An employer can fire, refuse to hire, or discipline an employee based upon the current illegal use of opioids.
  • An employer can fire, refuse to hire, or discipline an employee for current use of opioids if federal law requires this (most common example would be DOT regulations).
  • Otherwise, an employer cannot automatically disqualify an employee for current legal opioid use without considering if there is a way for the employee to safely and effectively do the job; in other words, engage in the interactive process.

Some may question that third bullet point, but it is true.  Opioids are often legally prescribed drugs, no different than any other prescribed drugs.

The EEOC also addresses additional scenarios such as a person taking opioids to treat pain, a person enrolled in a Medication-Assisted Treatment program for opioid addiction which program requires the taking of an opioid medication, and a person with a diagnosed opioid addiction (including related diagnosis such as PTSD or major depression).  It addresses and instructs on “reasonable accommodation” and the “interactive process.”

EEOC’s Assistance to Health Care Providers

Its second publication, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” the EEOC speaks directly to the employee/patient’s health care provider as to their role in this process.  At the outset, the guidance explains that the definition of a disability under the ADA is quite different than the definition of disability used under other laws, such as the one used for Social Security disability benefits.  The guidance also briefly explains the concept of “reasonable accommodation.”

The health care provider is told – as was the employee – that the current illegal use of drugs, including opioids, is not protected by the ADA.  The health care provider is advised that a patient who was, but no longer is, addicted to opioids, but who needs treatment to avoid a relapse may be entitled to a reasonable accommodation under the ADA.

Perhaps most helpful, the health care provider is instructed as to what type of information is to be provided to the employer.  The categories include:

  • The health care provider’s professional qualifications and the nature and length of the relationship with the patient/employee
  • The nature of the patient/employee’s medical condition
  • The patent/employee’s functional limitations in the absence of treatment, with specific guidance about any impact on a major life activity  (notably, the guidance tells health care providers that it is not sufficient to simply provide an employer with routine work restrictions such as “no operating heavy machinery”)
  • The need for a reasonable accommodation
  • Suggested accommodation(s) if known

While some employers may balk at this, don’t.  In practice, employers suffer more often from the lack of information they receive from health care providers than from receiving “too much” information.  Armed with this information (sooner rather than later), the employer and employee can have a more fruitful exchange as to whether a reasonable accommodation is required.

Takeaways for Employers

The mere mention of the word “opioid” often conjures up stories on the evening news.  It shouldn’t.  As demonstrated by this guidance, when you are in the role of employer you must look past the headlines and consider each case on its own.  A person taking opioids may in fact be taking them illegally in which case you would take certain steps.  However, there are also a host of other possibilities.

As is true in all situations involving the ADA and an employee’s medical condition (be it physical, mental, or emotional), the employer must take it one step at a time, avoiding any inclination to jump to conclusions without the necessary objective facts.  This is what the law requires.  This often means several (sometimes slow and painstaking) steps.  If you need assistance in working through the interactive process, you should seek competent employment counsel.

WHEN COVID-19 COMES TO TOWN, YOU NEED A CRISIS RESPONSE PLAN.

Unless you are totally “off the grid,” you have heard news of the Coronavirus, more specifically COVID-19.  While one must not overreact as there is more unknown than known about the virus, as a business owner, Human Resources professional, or manager, you have a responsibility to your workforce to be appropriately prepared for this as you would any other possible disruption such as a flood or an ice storm.  This article will not provide you definitive answers.  Each of you will have different considerations.  It will provide you with a road map of things to consider.  We strongly encourage you to think about these things sooner rather than later.  While it is likely you will never need to implement a crisis response plan, it is better to have one ready than to be caught with none. Continue reading

Drug Testing Case Involving Sudafed May Foreshadow Decisions for Medical Marijuana

Richard Turner was a crane operator for Phillips 66.  On April 24, 2017, he was selected for a random drug test under Phillips 66’s drug and alcohol testing policy.  On April 27, 2017, he was involved in a workplace accident and was tested again pursuant to the employer’s post-accident policy.

Turner’s April 24 test revealed a confirmed positive for amphetamines.  He produced a letter from his doctor that he was taking Sudafed.  He argued this explained the positive, claiming it was a false positive.  Nevertheless, he was terminated. Continue reading

THE IMPORTANCE OF TRAINING YOUR MANAGERS CANNOT BE OVERSTATED

Recently, the federal court in Oklahoma City denied an employer’s motion for summary judgment in an Americans with Disabilities Act case.  That’s not unusual; it happens.  What makes this case unusual is that the Judge did so finding the plaintiffs had presented “direct evidence” of discrimination.  That is unusual.  Generally, an employer moves for summary judgment under what we call the McDonnell-Douglas standard, which is a way the courts view the evidence because most of the cases involve circumstantial evidence.  What happened in this case is worth reviewing, and the lesson is clear – employers must train decisionmakers about the law!

Folmar was the plant manager of a manufacturing facility (“the Plant”). He had remained in contact with some guys from high school, Dunsworth and Shelton, both veterans. Folmar knew they were both veterans.  Folmar told them about some positions at the Plant.  Dunsworth and then Shelton made application through a temp agency and were placed for work at the Plant.  During orientation, they were asked about medication which might affect safety.  They were also told to call in and speak to a supervisor or manager if they were going to be absent or late.  At some point at work, Dunsworth informed the Plant’s safety rep that he had been prescribed a pain medication.  The safety rep expressed some concern about it, but Dunsworth said he only took it at night because it made him drowsy. Continue reading