3 Tips for Avoiding Legal Pitfalls in Addressing Employee Opioid Use

In response to concerns about the opioid epidemic and the employment provisions of the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC), on August 5, 2020, released technical assistance documents as guidance on opioid addiction and employment. Although directed at employees and healthcare providers, the EEOC’s guidance reminds employers of the basic parameters of the ADA relative to employee addictions.

We offer the following three tips to avoid liability traps in addressing employee opioid use in the workplace:

Tip #1 – Separate legal and illegal use based on evidence, not perception.

Employers may terminate employees or deny employment to applicants who currently use illegal drugs. Illegal use includes both unlawful drugs (such as heroine) and the unlawful use of prescription drugs.

Employers may, however, face liability for terminating or denying employment to someone who is wrongly perceived as using illegal drugs. To avoid legal pitfalls, employers may follow a legally defensible process to seek reasonable assurance that no illegal use of drugs is occurring or has occurred recently enough to create a real and ongoing problem.

Tip #2 – Tackle all accommodations requests through a streamlined interactive process.

Although employers are not required to tolerate employees currently using illegal drugs, the ADA may require employers to offer a reasonable accommodation for “opioid use disorder” or “OUD.” Accommodations for OUD may include (among others) reasonable leave to attend rehabilitation or appointments with healthcare providers for in-patient or out-patient treatment. In all cases, employers are best advised to have a streamlined interactive process that includes a request for medical documentation to support whether the employee has an ADA-protected disability and needs an accommodation. Although employees’ own healthcare provider may be a good resource, employers should be aware of their right to request an independent medical examination where permitted by the ADA’s regulations.

Tip #3 – Maintain and enforce job expectations.

Importantly, the EEOC’s recent guidance clarifies that “an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.” To limit ADA exposure, there must be sufficient evidence to distinguish essential from non-essential functions. Although not necessarily conclusive, an accurate and actionable job description can be a crucial risk management tool. Employers are best advised to continuously review employee job descriptions and consistently enforce expectations through regular reviews and, if necessary, documented discipline.

BONUS TIP: Understand that employees may be entitled to accommodations based on past addictions.

Notwithstanding current use, an employee with a history of addiction may meet one of the ADA’s definitions of “disability” and therefore be entitled to reasonable accommodations. Such accommodations are driven by an interactive process (just like any other request for accommodation) and may include reasonable leave time to attend support groups or meetings to prevent relapse.

If you have any questions about any of the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.
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