ADA Protects Workers in Treatment and Recovery for Opioid Use

Recent federal guidance reminds employers that workers with opioid use disorder (OUD) who are in treatment or recovery are protected from employment discrimination under the Americans with Disabilities Act (ADA).

"The opioid epidemic continues to pose an extraordinary challenge to communities across our country, and the COVID-19 pandemic has exacerbated this crisis," said Kristen Clarke, assistant attorney general for the Department of Justice (DOJ) Civil Rights Division. "People who have stopped illegally using drugs should not face discrimination when accessing evidence-based treatment or continuing on their path of recovery."

The guidance is a reminder to employers that OUD is considered a disability under the ADA and that employers may need to make certain accommodations, said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J.

The ADA prohibits businesses with at least 15 employees from discriminating against workers with disabilities and requires employers to explore reasonable accommodations that would help covered workers perform the essential functions of their jobs.

The DOJ noted on April 5 that the guidance is "part of the department's comprehensive response to the opioid crisis, which promotes prevention, enforcement and treatment."

The guidance aims to reduce the stigma associated with OUD and provide protections for employees who seek appropriate treatment, according to Adam Sencenbaugh, an attorney with Haynes Boone in Austin and San Antonio, Texas. "Employers should ensure that supervisors are trained to recognize that employees with opioid use disorder are disabled and may request accommodations under the ADA," he said.

Drug-Testing Policies

The ADA's three-part definition of "disability" includes the following:

• An actual disability, which is a physical or mental impairment that substantially limits a major life activity.
• A history or record of an actual disability.
• A perception that a worker has a disability or is regarded as having a disability.

Therefore, the act protects workers with a history of illicit drug use who:

• Have successfully been rehabilitated and are no longer using illegal drugs.
• Are currently participating in a rehabilitation program and are no longer using illegal drugs.
• Are erroneously regarded as illegal drug users.

"The DOJ was careful to note that employees are not protected from disciplinary action that's taken because of illegal drug use," said Angela Johnson, an attorney with Faegre Drinker Biddle & Reath in Indianapolis.

For example, if an employee violates a uniformly enforced workplace policy by reporting to work impaired by unlawful use of opioids, termination is likely defensible. "Illegal use" could mean the opioids were not prescribed to the employee, or the employee's use exceeded the prescribed amount. 

"The latter can be difficult for employers to prove, and employment counsel can assist employers to navigate around legal risks," Johnson said.

Employers are allowed to have substance-abuse and drug-testing policies that help ensure workers are not currently using illegal drugs. However, employers should be careful that their drug-screening policies do not illegally target employees taking prescription medication to treat their addiction, Sencenbaugh said.

The DOJ noted that some workers who test positive for an opioid—which may include medication for OUD—may be taking the medication as prescribed by a licensed health care professional who is supervising the treatment.

"These individuals may not be denied, or fired from, a job for this legal use of medication, unless they cannot do the job safely and effectively, or are disqualified under another federal law," the DOJ explained.

Accordingly, employers should have a statement in their policies that gives workers the opportunity to explain a positive drug test, Mastroianni said.

Tips for Employers

Although the guidance doesn't change the underlying law, it signals that employers need to be more careful in acknowledging and accommodating employees with opioid use disorder, Sencenbaugh said. This includes recognizing that employees recovering from OUD are legally protected under the ADA and taking steps to reduce the stigma around seeking appropriate drug abuse treatment.    

Employers should also be aware of the risks of "associational" discrimination, he noted. Thus, employers should ensure that managers are trained to avoid discrimination against employees with friends or family who experience addiction. 

Mastroianni said employers should avoid a "knee-jerk reaction" that may be unfair or illegal when they find out a worker is in treatment or recovery. Don't assume someone will relapse and don't take adverse employment action without consulting legal counsel, she said.