On August 5, 2020, the EEOC released technical assistance documents for employees and health care providers on opioid addiction and employment. The documents provide questions and answers about how the Americans with Disabilities Act (ADA) protects employees who use legal opioid medications or have past addiction to opioids. Of particular significance, the EEOC asserts that employees currently in treatment for opioid addiction are protected by the ADA – thereby officially endorsing a position that they have previously asserted on a less formal basis.

Under the ADA, current drug users are not protected but rehabilitated drug users are.  This leads to the question of when someone can be considered to be rehabilitated. In a 2019 blog post, I reported on comments made by a Senior Attorney Advisor at the EEOC during a training seminar.  The EEOC attorney stated that participation in a Medication Assisted Treatment (“MAT”) program for opioid addiction that requires the employee to take opioid medication, such as buprenorphine and methadone, would be considered evidence of rehabilitation.  This, in turn, would require employers to engage in an individualized assessment to determine whether the employee can perform the essential functions of the job, with or without a reasonable accommodation. The EEOC attorney also stated that the agency would be bringing cases under this premise in order to establish a body of legal precedent. I wrote another blog post about one such case, in which the federal court agreed with the EEOC’s position, earlier this year.

Now, the EEOC’s new guidance for employees explains that the ADA allows employers to terminate and take other employment actions based solely on an employee’s illegal use of opioids. The guidance makes clear that “[i]f you are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally,” the ADA may apply. Thus, if an employee is participating in a MAT program for opioid addiction, then the employee has a valid prescription for an opioid-based medication and their use of the medication is legal. As such, the ADA prohibits an employer from denying a job or terminating an employee because they are in a MAT program, unless the employer has objective evidence that the employee cannot do the job or poses a direct threat to their own health and safety or to others that cannot be eliminated by reasonable accommodation. An employer cannot take an employment action because of remote or speculative risks. The guidance states that an employer may want an employee to undergo a medical evaluation to make sure it has enough objective evidence about what the employee can safely and effectively do.

The guidance for health care providers provides information on reasonable accommodations and how to address an employer’s safety concerns. Reasonable accommodations include an altered break or work schedule, a change in shift assignment, or a temporary transfer to another position. However, an employer never has to lower production or performance standards, eliminate essential functions of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.

With respect to employers determining whether an employee poses a direct threat to themselves or others, the guidance states that it is not enough for health care providers to provide the employer with restrictions such as “no operating heavy machinery.” The guidance explains that employers need information that will help them assess the level of risk posed by the disability, taking into account the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. This information should include relevant medical events or behaviors that could occur on the job, the probability that they will occur, and whether any safety precautions would reduce the chances that the medical event or behavior will occur.