Widespread opioid abuse continues, including among working Americans, subjecting employers to the risk of liability under the intricacies of the Americans with Disabilities Act (ADA) and similar state laws. On Wednesday, the U.S. Equal Employment Opportunity Commission (EEOC) weighed in, releasing two new guidance documents, one directed to employees and the other to their healthcare providers. Employers should take heed of both documents.
Prescribed use of opioids remains high in the U.S. In 2018, more than 168,000,000 prescriptions for opioids were written in the U.S. This is equivalent to a national rate of opioid prescriptions of more than 51 prescriptions written per 100 persons, according to the Centers for Disease Control and Prevention.
Prescription drugs such as codeine, morphine, OxyContin, Percodan, Percocet, Vicodin, Lortab, Lorcet, Demerol, and illegal drugs including heroin, are considered to be opioids by the EEOC. Certain drugs prescribed to treat opioid addiction are also considered opioids under the guidance documents.
In its new guidance to employees, the EEOC highlights that employees who are using opioids legally, are or were addicted to opioids or are in treatment for opioid addiction may be entitled to reasonable accommodation under the ADA.
Where, for example, an employee is prescribed an opioid as treatment for a pain condition and the condition qualifies as a disability under the ADA, the employee may be entitled to reasonable accommodation, according to the guidance. An employee may also be entitled to reasonable accommodation, in another example, if an opioid medication interferes with an employee’s “everyday functioning.”
Employees who are addicted to opioids, a condition sometimes referred to as “opioid use disorder” or “OUD,” and employees who need accommodation in order to avoid relapse may be entitled to reasonable accommodation, according to the EEOC.
The EEOC also makes clear in the new guidance to employees that the current illegal use of opioids is not protected by the ADA.
The EEOC guidance directed to healthcare providers sets out basic information regarding employees’ rights to reasonable accommodation. In an aspect that may be of greatest practical value, the guidance explains the categories of information healthcare providers should include in medical certifications they prepare in support of patients’ requests for reasonable accommodation.
The eight-page guidance directed to opioid-affected employees largely advises them as to circumstances in which they may be entitled to reasonable accommodation and how to request accommodation. The guidance, entitled “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” may be found here.
The EEOC guidance for healthcare providers is entitled, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed, and may be found here.
The guidance documents do not set out new rules. Rather, they are intended to be concise statements of “principles already established” for use by employees and their healthcare providers, the documents state.
Given that the EEOC will be making these guidance documents broadly available to employees and their healthcare providers, the documents merit attention by human resources personnel and others within employer organizations who play a role in accommodation decisions or managing affected employees.