New DOJ Guidance Protects Opioid Use Disorder Under ADA
Author: Emily Scace, XpertHR Legal Editor
April 14, 2022
According to recent guidance from the Department of Justice's (DOJ) Civil Rights Division, employees with opioid use disorder are protected against discrimination under the Americans with Disabilities Act (ADA) unless they are currently engaging in illegal drug use. While the guidance does not create new legal obligations for employers, it provides insight into the Biden administration's approach to interpreting and enforcing ADA protections.
Citing the challenges of the opioid crisis, the guidance aims to clarify antidiscrimination protections for people in recovery from opioid use disorder. Accordingly, individuals taking legally prescribed medication to treat their opioid use disorder - such as methadone, buprenorphine or naltrexone - are protected by the ADA as long as the medication is used under the supervision of a licensed health care professional. Thus, blanket employer policies that ban the use of these substances would violate the ADA.
Similarly, ADA protections also apply to individuals participating in supervised rehabilitation or drug treatment programs, and employers may not discriminate against employees on the basis of their participation in these programs. Individuals who have a history of past opioid use disorder, those who are regarded as having an opioid use disorder, and those associated with an individual who has an opioid use disorder are also protected.
Employers are not prohibited from adopting reasonable drug-free workplace or drug testing policies and may test applicants or employees for opioids, subject to any limitations under state or local law. However, individuals who demonstrate that a positive test resulted from the use of a legally prescribed medication to treat opioid use disorder may not be denied or fired from a job on the basis of that result, unless they cannot perform the job safely and effectively or another federal law disqualifies them.
Current illegal drug use - defined as illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem - remains unprotected.
According to a press release announcing the guidance, the Civil Rights Division of the DOJ has been working to remove discriminatory barriers to recovery for individuals who have sought treatment for opioid use disorder through outreach, technical assistance and enforcement.
The DOJ shares responsibility for enforcing the ADA with several other agencies, including the Equal Employment Opportunity Commission (EEOC). The EEOC issued guidance on ADA protections for opioid use in 2020 that largely mirrors the stance communicated by the DOJ.