Editor’s note: This article is for general educational purposes only and does not constitute legal advice.
For the past several years, opioid abuse and addiction have been headline news. Countless individuals’ and families’ lives have been adversely affected by these dangerous and over-prescribed drugs. The situation is heartbreaking for everyone involved, and it is important for you to be aware of protections given to employees with opioid use disorder under the Americans with Disabilities Act.
On April 5, 2022, the Department of Justice issued guidance for employers that stated the ADA recognizes opioid use disorder as a disability. Therefore, it is illegal to discriminate against workers with the condition.
Understanding the ADA
The ADA is a federal law that provides the protection of civil rights for individuals with disabilities. The law’s intent is to ensure those with disabilities have the same rights and opportunities as anyone else. These rights include purchasing goods and services, participating in government programs and having employment opportunities. According to these stipulations, agencies, schools, medical facilities and other entities cannot discriminate against people with disabilities. Instead, they must provide reasonable accommodations to guarantee these individuals’ civil rights.
The ADA covers people with opioid use disorder because the disorder is considered a disability. The ADA defines disability differently than other laws, such as those related to Social Security benefits. The ADA’s definition has three parts:
Those with opioid use disorder have a disability because they suffer from drug addiction. The ADA considers drug addiction to be a mental or physical impairment that limits major life activities. The ADA offers protection to those who are currently in rehabilitation and no longer using; those with a history of drug use if they have gone through rehabilitation and are no longer using; and those believed to have opioid use disorder (whether that belief is accurate or not). The ADA does not cover people who are actively using illegal drugs. “Illegal” can mean the drugs were not prescribed or used beyond the prescribed amount.
The DOJ guidance was issued to help decrease the stigma often associated with opioid use disorder and provide support for those seeking treatment. DOJ noted this information is “an important part of combating the opioid epidemic across American communities. While this document focuses on individuals with [opioid use disorder], the legal principles discussed also apply to individuals with other types of substance use disorders.” It aims to prioritize “prevention, enforcement and treatment.”
Your business
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According to the ADA, businesses with 15 or more employees are forbidden from discriminating against people with disabilities. Employers with affected workers must make reasonable accommodations so workers can perform their primary job functions. However, if drug testing is part of your company’s policies, the situation can get complicated.
Many workers with opioid use disorder take prescribed medication to combat their addictions. With medication-assisted treatment, those with opioid use disorder receive counseling and therapy. The program is supervised by licensed healthcare providers and includes medications for opioid use disorder. These can include other opioids such as buprenorphine, methadone or naltrexone, which the Food and Drug Administration has approved for treating opioid use disorder. Therefore, workers who are in medication-assisted treatment may test positive in drug screenings, which means you will need to differentiate between illegal drug use and substances used in treatment. Because it is illegal to discriminate against workers who are in treatment, workers under opioid use disorder medical treatment care cannot be fired or denied a job if they test positive for an opioid.
In addition, it is illegal to discriminate against any workers who associate with others, such as friends or family members, who have opioid use disorder.
You are allowed to implement and enforce policies related to substance abuse and drug testing. But you must use caution and ensure you are not targeting those who have been prescribed medication as part of their addiction treatment. Make certain your company drug policy offers employees a chance to explain if they test positive.
However, you are within your rights to take disciplinary action against workers who are taking illegal drugs or come to work impaired. Also, ensure supervisors can recognize the signs of drug and alcohol impairment. It is critical they sound the alarm if workers are unable to complete their tasks or are risking job-site safety. Then, you can calmly and methodically investigate the issue.
Also, you are within your rights to deny employment to or terminate employees with opioid use disorder if they cannot do their jobs effectively or safely or violate some other federal law. Just be confident you have evidence to back up any such claims.
For articles related to this topic, see “The epidemic is real,” May 2019 issue and “Focus,” April 2017 issue.
Final advice
Managing a company is challenging on many levels. When you learn an employee has tested positive on a drug screening or is recovering from opioid use, your first reaction might be negative. However, before jumping to conclusions, take the time to understand the situation and listen to his or her explanation. And if the positive test is the result of opioid use disorder, give that employee credit for seeking help. Your support may play a part in helping your worker avoid a relapse.
If you have questions about handling screenings and other drug-related issues at your company, do not hesitate to seek legal counsel. An experienced employment attorney can explain the ADA standards and help you navigate the issues you are facing.
TRENT COTNEY is national construction practice group leader at the law firm Adams and Reese LLP, Tampa, Fla., and NRCA’s general counsel.
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