The use of drugs in the workplace, whether legally or illegally, is a difficult situation for employers.
Statistics indicate that 38% to 50% of all workers compensation claims are related to substance abuse in the workplace. (See: ‘Working Partners,’ National Conference Proceedings Report: Sponsored by U.S. Dept. of Labor, the SBA, and the Office of National Drug Control Policy.) Such work-related accidents have a negative impact on profitability and endanger others, so employers have a strong interest in keeping their workplace drug free.
New guidance from the EEOC directed towards employees and healthcare providers just made the job a little more complicated for employers.
While acknowledging that illegal drug use is not a covered disability, the guidance from the EEOC notes that employees who are using opioid medication lawfully, are receiving medication-assisted treatment for opioid addiction, or have recovered from their opioid addiction, are protected from disability discrimination under the ADA. Likewise, in Tennessee, these individuals would be protected from discrimination under the Tennessee Disability Act.
The EEOC presents information to assist employees in requesting reasonable accommodations and maintaining employment when they are legally using opioids, are in opioid addiction treatment program or have a history of using opioids.
There is guidance to encourage and assist healthcare providers in advocating for reasonable accommodations on behalf of their patients and how to assist their patients who are seeking reasonable accommodations from an employer. To that end, the EEOC provides examples, outlining the circumstances where reasonable accommodation might be and providing examples of documentation that would be of assistance.
What constitutes a disability covered by the ADA is an ever expanding and moving target.
In light of the recent guidance from the EEOC, employers need to be aware of their potential responsibility to provide reasonable accommodation to the legal users of opioid medications, those in treatment for opioid addiction, and those who have recovered from their opioid addiction.
Employers should not dismiss request for accommodations in these circumstances offhand because of the potential for lawsuits for disability discrimination and retaliation under the ADA. Consult trusted legal counsel to help navigate these rough waters and avoid significant legal problems in the future.