While the ravages of COVID-19 turned the nation’s attention away from the opioid addiction crisis, the number of opioid overdose deaths has surged during the pandemic. Recognizing that the social and emotional consequences of the pandemic will likely increase the workplace impact of opioid use and co-morbid health conditions, the Equal Employment Opportunity Commission (“EEOC”) recently issued two guidance documents, one for employees and another for health care providers who treat employees:
- Use of Codeine, Oxycodone, and Other Opioids: Your Employment Rights.
- How to Help Current and Former Patients Who Have Used Opioids Stay Employed.
The primary focus of each guidance is to help employees currently using opioids with a valid prescription or who have a history of opioid addiction to remain employed and receive necessary reasonable accommodations so they can continue to perform well and work safely. The EEOC guidance clearly reaffirms, however, that current illegal opioid use is not a covered disability and that the ADA allows employers to discharge and discipline employees for illegal use of opioids, even if there are no performance or safety problems.
Although the guidance documents are not directed to employers and do not change any previously existing standards, they increase the likelihood that employment claims will result if employers do not properly respond to employees requesting accommodation or seeking treatment for opioid addiction (termed “Opioid Use Disorder” in the guidance).
Review/Update Policies
Employers should review/update ADA accommodation policies, procedures and postings to ensure that employees know of their right to seek accommodation and understand the process for doing so. It should be noted, however, that the new EEOC guidance emphasizes an employer cannot deny reasonable accommodation merely because an employee did not follow a specific process.
Review/Update Forms
The EEOC guidance to health care providers describes information most likely to support a patient’s request for accommodation. This guidance is helpful to employers wanting to update forms relating to requests for accommodation and medical certifications. Many such forms could be improved by asking more detailed questions about the nature of the patient’s functional limitations and by asking the health care provider to address options for effective accommodation.
Review/Update Training
Training should be considered to ensure that supervisors and HR will (1) recognize what kinds of unwritten statements may qualify as a request for accommodation; (2) understand accommodation options; and (3) commit to engaging in robust interactive processes with employees. Training should also cover best practices for documenting workplace impairment, such as avoiding conclusory statements in favor of clear and detailed factual descriptions of behavior.
Practical Takeaways
Because employees with Opioid Use Disorder can often be considered “problem” employees due to lack of productivity, absenteeism, and other issues arising from opioid use, it is more difficult for supervisors to respond objectively to requests for accommodation. Since the new EEOC guidance broadly states that any request for “some type of change in the way things are normally done at work” may qualify as an accommodation request, training supervisors about properly recognizing and responding to such requests is crucial. Now is a good time for employers to evaluate how prepared they are to properly respond to requests for accommodation, which are now more likely to occur, from employees who legally use opioids or need treatment for Opioid Use Disorder. This will help to avoid expensive litigation down the road.
If you have any questions or would like more information on this topic, please contact:
- Mark Sabey at (303) 801-3538 or marksabey@wp.hallrender.com; or
- Your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
