What the EEOC Thinks About Opioid Use and the ADA

By Alexander Castelli - Shawe Rosenthal LLP

July 24, 2019

Last week, I attended a training seminar hosted by the EEOC.  Sharon Rennart, a Senior Attorney Advisor at the EEOC, presented in part on how the ADA may apply to employees with Opioid Use Disorder (“OUD”).  OUD may be diagnosed where there is a problematic pattern of use leading to clinically significant impairment or distress, manifested over a 12-month period by the presence of at least two out of eleven elements, including:

    • Opioids are often taken in larger amounts or over a longer period than intended.
    • A persistent desire or unsuccessful efforts to limit opioid use.
    • A great deal of time is spent obtaining, using, or recovering from opioids.
    • Craving or a strong desire or urge to use opioids.
    • Recurrent opioid use resulting in a failure to fulfill major role obligations at work, school, or home.
    • Important social, occupational, or recreational activities are given up or reduced because of opioid use.
    • Tolerance.
    • Withdrawal.

There is ADA coverage only if a person with OUD (1) falls under one of the definitions of disability; (2) is not currently engaged in the illegal use of drugs; and (3) shows evidence of rehabilitation.  The definition of OUD requires significant functional limitations, so if an individual meets the second and third prongs, then he/she will most likely satisfy either the “actual” or “record of” definition of disability based on a substantial limitation of a major life activity.

It is important to note that Medication Assisted Treatment (“MAT”) (defined as the use of medications with counseling and behavioral therapies to treat substance use disorders) is considered as evidence of rehabilitation and does not constitute currently engaging in illegal use of drugs if MAT is lawfully prescribed and taken under supervision.  Medications used in MAT include methadone, buprenorphine, and naltrexone.  Ms. Rennart stated that the EEOC is seeing many employers jump the gun when they find out an applicant/employee is prescribed an opioid and refuse to hire or terminate employment.  If an employer believes that use of an opioid signals addiction (impairment) and takes action against an applicant/employee based on that perception of impairment, then the applicant/employee may claim ADA coverage under the “regarded as” definition of disability.

When an applicant or employee reveals the use of MAT or a drug test reveals the presence of MAT, an employer cannot refuse to consider the applicant for hire, revoke a conditional job offer or terminate employment (or take any other negative employment action) without making any individualized assessment of the person’s ability to safely and effectively perform the job, with or without reasonable accommodation.  Some forms of reasonable accommodation include schedule changes or leave to seek treatment at ongoing rehab programs and breaks or removal of marginal functions that may be required to address the side effects of MAT.

Recent cases brought by the EEOC on behalf of applicants/employees who use MAT involve the lack of individualized assessment by the employer of the applicant/employee to determine whether MAT made them unqualified for the position.  Ms. Rennart specifically said that the EEOC is trying to establish a body of legal precedents by bringing these types of cases and put employers on notice that an individualized assessment is required.

Tip for Employers: The EEOC recommends that employers create an ADA compliant procedure for conducting an individualized assessment of an employee who is enrolled in any form of alcohol, drug or illegal substance rehab, or who is using MAT, in order to determine whether the individual can safely and effectively perform the essential job functions, with or without reasonable accommodation.  The EEOC also recommends spelling out the factors required under a direct threat assessment to ensure that considerations of risks to the individual or others are made based on objective information, rather than fears or generalized concerns, and that a decision is based on all of those factors.