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EEOC Expands Guidance on Disability Discrimination Coverage for Opioid Users EEOC Expands Guidance on Disability Discrimination Coverage for Opioid Users

EEOC Expands Guidance on Disability Discrimination Coverage for Opioid Users

As the war with COVID-19 rages on, the United States continues its battle against another dangerous opponent—the opioid epidemic. The last decade has taught us that opioid use and abuse knows no boundaries; its impact has been felt among families, friends, households and workplaces alike. To that end, the Equal Employment Opportunity Commission (EEOC) issued new guidance on August 5, 2020 requiring employers to consider the Americans with Disabilities Act (ADA) when managing its employees who are either lawfully using opioids or who are working through recovery. The EEOC defines opioids to include prescription drugs, such as morphine, OxyContin, Percocet and Vicodin, as well as Suboxone and methadone, which are commonly prescribed to treat opioid addiction during the course of Medication Assisted Treatment (MAT).

Despite the new guidance, employers may take adverse action against employees engaged in the unlawful use of opioids regardless of whether such use presents any performance or safety issues. The EEOC makes it clear, however, that with regard to lawful opioid use, including MAT, employers must consider whether reasonable accommodations exist for the employee to perform the job safely and effectively. The guidance contemplates accommodations for medical conditions associated with opioid addiction, such as depression and post-traumatic stress disorder, as well as the addiction itself, a diagnosable condition referred to as Opioid Use Disorder. For example, an employee may qualify for an altered work schedule, if reasonable, in order to attend therapy or support group meetings, such as Narcotics Anonymous, necessary to avoid relapse.

The EEOC issued separate, though related, guidance for health care providers to assist them in navigating their patients’ needs for workplace accommodations as a result of opioid addiction. The guidance offers examples of potential accommodations like unpaid time off for treatment (which may intertwine with the Family and Medical Leave Act) or a temporary reassignment of duties.

Sufficient documentation is integral to the ADA’s interactive process and deficient paperwork is frustrating for both employers and employees. As such, the EEOC has used its newly-issued guidance as an opportunity to provide tips and best practices for health care providers when completing requests for reasonable accommodations:
  • Briefly outline professional qualifications as well as the nature and length of the relationship with the patient;
  • Identify the nature of the patient’s condition;
  • Explain the need for the reasonable accommodation and how the patient’s functionality is limited in the absence of treatment; and
  • Suggest potential accommodations, if possible.

The guidance documents are available in full on the EEOC’s website, though employers are encouraged to seek legal advice in administering and ensuring full compliance with the ADA. As always, Ice Miller is here to help.

This publication is intended for general informational purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstance.

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