EEOC Clarifies Opioid Use Protections Under ADA

Author: David B. Weisenfeld, XpertHR Legal Editor

August 14, 2020

Employees who are using opioids, are addicted to opioids or were addicted to them in the past may be entitled to reasonable accommodations under the Americans with Disabilities Act (ADA), according to a new EEOC guidance. The Commission explained that opioid addiction is a diagnosable medical condition that can be an ADA disability.

The EEOC clarified that the ADA allows employers to fire individuals for illegal opioid use, even if they do not exhibit performance or safety problems. However, they may not disqualify opioid users from employment who are using opioids legally without considering if there is an accommodation that would help them perform their job safely and effectively.

One example of a potential reasonable accommodation the EEOC gives is an altered schedule for an employee who has recovered from an opioid addiction but needs time to attend a support group meeting or therapy session to help them avoid a relapse.

The Commission adds that an employer may not deny a reasonable accommodation request based on remote or speculative safety risks. Instead, it must have objective evidence that an employee cannot do the job or poses a significant safety risk, even with a reasonable accommodation.

The EEOC also issued a fact sheet detailing how health care providers can help current and former opioid users to stay employed. The fact sheet noted that health care providers can help individuals to obtain reasonable accommodations by providing documentation to support those accommodation requests. The documentation need not be extensive. The EEOC stated that this documentation is most likely to be successful if it explains:

  • Your professional qualifications and the nature of the relationship with the employee;
  • The nature of the employee's medical condition (and if they need the accommodation because of an opioid medication's side effects);
  • The employee's limitations in the absence of treatment; and
  • The need for a reasonable accommodation (e.g., a change in schedule because of side effects from medication).

A 2019 National Safety Council poll showed that 75% of employers have been affected by opioids in some way, but only 17% described themselves as "extremely well prepared to deal with the issue."