Opioid drug prescription bottles.

EEOC Issues New Guidance on Opioid Use by Employees

By Douglas Lipsky

The Equal Employment Opportunity Commission (EEOC) recently issued two guidance documents regarding employee opioid use and reasonable accommodations under the Americans with Disabilities Act (ADA). The first document is directed at employees and the other provides information for healthcare providers

The new guidance is in response to the escalating use/abuse of prescription drugs in the U.S., such as codeine, morphine, OxyContin, Percodan, Percocet, Vicodin, Lortab, Lorcet, and Demerol, as well as certain drugs prescribed to treat opioid addiction. The best way for employers and employees in New York to understand how to address opioid-related accommodations is to consult with an experienced employment lawyer

The Legal Use of Opioids in the Workplace

Generally, the EEOC’s guidance notes that employees who are using prescribed opioids legally, are addicted to opioids, or are being treated for opioid addiction (including illegal drugs such as heroin) may be entitled to reasonable accommodation under the ADA. 

As an example, an employee who is prescribed an opioid for a pain condition that qualifies as a disability under the ADA may be entitled to a reasonable accommodation. In particular, a reasonable accommodation should be provided when the employer determines that an employee’s legal use of opioids will interfere with his or her safe and effective job performance. Also, employees who are opioid addicts, or being treated for opioid addiction, may be entitled to a disability accommodation. 

Examples of opioid-related accommodations under the ADA include transferring the employee to another position or holding the employee’s position open while he or she takes leave to seek treatment. Employees who have recovered from opioid addiction may also be entitled a reasonable accommodation to prevent a relapse (e.g. time off to attend a support group meeting).

The guidance also reminds employees that the illegal use of opioids is not protected under the ADA: employers can take an adverse employment action (e.g. termination) based on illegal opioid use. On the other hand, employers may not take adverse action against an employee who is using prescribed opioids legally without first considering whether he or she can perform safely and effectively. 

Finally, the EEOC’s guidance to healthcare providers explains employees’ rights to reasonable accommodation and sets the parameters for determining whether opioid addiction poses a safety risk.  It is worth noting that the guidance is not binding and does not change existing law. Rather, it is intended to provide clarity to employees and their healthcare providers regarding existing requirements under the law or agency policies.

Why This Matters

The ongoing opioid epidemic is a longstanding social ill that can only be resolved through proper treatment and forward-looking public policy. Now that the EEOC has weighed in on the issue, opioid-related accommodations provide employees with an opportunity to seek needed pain and/or addiction treatment without the fear of being fired. At the same time, employers and employees have a mutual responsibility to create a drug-free workplace. 

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.