Employee Opioid Use and EEOC Guidance

November 30, 2020

In recent years, the U.S. has experienced an increase in substance abuse, particularly related to opioid use and addiction. Employers dealing with substance abuse issues face challenges that are exacerbated by the unique effects of current COVID-19 restrictions on employees and the workplace. Employees are facing issues related to COVID-19, political discord, racial inequities, financial concerns, isolation, homeschooling, and others. When these pressures are combined with traditional stressors such as ordinary work expectations, family conflicts, and the holidays, it can result in problems that spill over into the workplace, particularly when the workplace is the employee’s living room.

Employers must be mindful that employee substance use, abuse, or recovery may be protected by state and/or federal law, including the Americans with Disabilities Act (ADA), and may require accommodation. The Equal Employment Opportunity Commission (EEOC) recently released guidance regarding opioid addiction and employment. The points outlined in the guidance are not new policies and are not binding law, but instead, clarify existing rights and responsibilities under the law. While the guidance is written specifically for employees, it also offers employers useful strategies for dealing with the complexities of opioid use.

The current illegal drug use of opioids is not a covered disability under the ADA, and federal law allows employers to terminate or take other adverse employment action against an employee for the illegal use of opioids. Importantly, however, those engaged in the current lawful use of opioid medication, those in treatment for opioid addiction, and those who have recovered from addiction may have a covered disability entitling them to accommodation and other protections. Notably, “an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.” (Q.4)

Evaluating requests for accommodation related to addiction can be complicated and leave employers struggling to develop a workable plan. The Job Accommodation Network (JAN) is a program funded by the U.S. Department of Labor, Office of Disability Employment Policy. JAN provides information to employers faced with requests for accommodation of all types, including those related to current or past drug or alcohol addiction.

If your organization is facing issues related to employee addiction and/or accommodation, member services can provide meaningful guidance and assistance. Contact us today for more help!