DOJ: Opioid Recovery Protected Under the ADA

In April 2022 the Department of Justice Civil Rights Division issued guidance for employers whose staff members may be recovering from opioid addiction. The guidance reminds employers the Americans with Disabilities Act (ADA) prohibits discrimination against workers in recovery from opioid use disorder (OUD). This also includes workers who take legally prescribed medication to treat their OUD.

In recent years, an opioid epidemic has swept across the United States. For many workers, the onset of addiction began with the use of prescription medication for pain or injuries. OUD has reached crisis levels in some communities, prompting the DOJ to remind employers that workers in recovery have protection from adverse employment actions.

What is an opioid use disorder (OUD) disability?

The DOJ guidance advises that employees in recovery for any substance abuse disorder (SUD) have a disability under ADA definitions. A disability is any condition that limits a person’s capacity to perform major life activities.

Drug addiction is a physical or mental impairment under ADA definitions. Workers are considered addicted when ‘repeated use of drugs causes clinically significant impairment, such as health problems and or an inability to meet major responsibilities at work, school, or home.’

Although qualified as a disability, employers are not required to allow staff members to abuse while at work. The ADA provides no protection to work while impaired.

Addiction, to either opioids or other substances, is a disability provided the employee is seeking help and is in recovery.

However, addiction, to either opioids or other substances, is a disability provided the employee is seeking help and is in recovery. This can include treatment at an inpatient facility; treatment through outpatient services; medical intervention; and more. Employees who continue to abuse substances, even under medical care, do not have protection under the ADA.

Which employees request an accommodation?

As with all protections under the ADA, workers must notify their employer of their condition; request an accommodation if appropriate; and assert their protection under the Act. Employers cannot ask staff members if they have a physical or mental disability, even if the disability is obvious — like someone using a wheelchair.

It’s the employee’s responsibility to notify their employer of their disability and whatever needs they have, to have protection under the law.

For many employees, disclosing a disability to their employer is stressful. This necessary step, however, allows employees to assert their rights and protections and gives businesses the opportunity to work with the staff member on any needed accommodations.

Businesses must create a safe atmosphere where employees are comfortable sharing their private information. They must also take significant steps to maintain the privacy of the staff member.

Confidentiality and confidence are key for a culture of trust

Once disclosed, a disability is highly confidential: only inform staff members who need to know about it. This may include a supervisor, who might need to change shifts or assignments.

Only inform coworkers if the disability poses some type of risk. An example may be an employee who is epileptic: their colleagues may need to intervene on their behalf in the event of a seizure.

Business leaders must carefully consider which coworkers, if any, need to know this information. When in doubt, discuss with whom and how to share information with the employee before providing it to peers.

To create a culture of trust, employees must know their information is not disclosed unless necessary. Confidence in their employer can make it easier for workers to seek the help they need from wellness programs, medical providers, and their company.

Conditional employment, even when accommodating

Employers are under no obligation to allow staff to work while impaired. If a staff member is visibly under the influence of opioids or other substances, legal or illicit, business leaders should remove them from the worksite.

These staff members pose a risk to themselves, others, and property. A best practice is to send the employee home. Arrange for safe transportation so they do not endanger others on their way.

Your company policy on substance abuse may include disciplinary action, up to termination, for impairment on the job. If the employee has not requested an accommodation, disciplinary action should follow based on your policies. If they have disclosed their disability and requested an accommodation, you may have to discern what happened before you take any disciplinary steps.

In addition, if the employee has simply relapsed, using illegally or illicitly, you are under no obligation to keep them in your employ. The ADA requires reasonable accommodations for workers in recovery. The ADA does not offer protections for a staff member that ‘falls off the wagon.’

Recovery tools employees with OUD may have

If an employee was impaired on the job but requested an accommodation, you may need to investigate what occurred. It is possible the impairment was the result of prescribed medications that treat OUD. Discuss with the employee and verify with their physician that this has not occurred before you take any disciplinary steps.

The use of prescribed medication to treat OUD is not an ‘illegal use of drugs’ providing the medication is used under the supervision of a licensed health care professional. Employees should disclose use of medications for opioid use disorder (MOUD) or medication assisted treatment (MAT).

The ADA provides protection to employees using these substances while undergoing medical care. Currently, the Food and Drug Administration (FDA) has approved methadone, buprenorphine, or naltrexone for the treatment of OUD. In addition to FDA-approved medications, MAT treatment includes combining counseling and behavioral therapies with the use of FDA-approved medications.

If a prescribed medication caused the impairment, an accommodation may be necessary. This could include allowing the staff member time off as they adjust to the medication; a reduction in responsibilities, or a change to light duty.

The worker and their physician may suggest other accommodations. Requested accommodations must be reasonable and cannot pose an undue hardship on the employer.

Making reasonable accommodations for workers with OUD

Any request for an accommodation must be reasonable. Employers are not obligated to accommodate a request that poses an undue hardship on the business or coworkers.

An undue hardship can mean financial difficulty: such as asking another worker to supervise or oversee the impaired staff member. But undue hardships refer to more than financial issues. The ADA defines undue hardship as ‘accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.’

If an organization can make accommodations that don’t pose an undue hardship, they should make every effort to support and assist the employee. Recovery may be a lengthy process, with a lifetime of self-monitoring. A good employee may be worth the investment.

Substance abuse, particularly opioid abuse, is not limited to any demographic. Any employee can fall victim to addiction.

The pandemic, with the stress and anxiety it caused, exacerbated substance abuse for some. For others, the strain of isolation and financial insecurity created new problems with addiction.

Your employees may be trying to recover and reclaim their lives. Assistance you provide may be critical to helping them stay on track with recovery and maintain their rights and protections under the law.