In 2017, the U.S Department of Health and Human Services declared that the opioid crisis in the United States was a national public health emergency. This came as no surprise given how almost 450,000 people died from opioid overdoses between 1999 and 2018. Commonly abused opioids include:
Recent government data shows a promising improvement. Of the 38 states with opioid overdose death data, 17 of them showed a decline from 2017 to 2018. And the remaining states did not show a significant increase.
But there is now the stigma that is attached to opioids, even when they are not abused and only taken as prescribed by a doctor. And don’t forget about the numerous individuals that are currently in, or have completed, opioid addiction treatment. Some employers may not feel comfortable with hiring or retaining these workers.
If an employer harbors these biases and uses them to make employment decisions, the employer may run afoul of the Americans with Disabilities Act of 1990.
The Americans with Disabilities Act of 1990 (ADA)
The ADA didn’t come about easily, as it took several years of political activity for this law to become a reality. In the end, the final version of the law contained several sections that apply to different settings, including employment, public accommodations and public entities.
The section that applies to the employment context prohibits covered employers from discriminating against disabled employees who are qualified to perform their jobs.
A covered employer is any employer with 15 or more employees. This includes state and local governments. There is also a prohibition on disability discrimination by the federal government. But this is through Section 501 of the Rehabilitation Act of 1973 applying the ADA’s antidiscrimination standards.
The disability protections granted by the ADA apply to employees who have a disability, have a record of a disability, or are regarded as having a disability. The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. This sounds like a strict definition, and it used to be until Congress amended the ADA by passing the Americans with Disabilities Act Amendment Act of 2008 (ADAAA).
While the ADAAA didn’t change the definition of a disability under the ADA, it stated that the term “disability” should be interpreted in a manner that results in a “broad coverage of individuals.”
The ADA’s protections only apply to qualified employees. This means they must not only meet the employer’s job requirements (such as education, certifications and experience), but also be able to perform the essential functions of the job, with or without a reasonable accommodation.
A reasonable accommodation is a modification to a work setting or employment policy that allows an otherwise qualified job applicant or employee to apply for a position, perform the essential functions of a job or enjoy the benefits of employment that those without a disability can enjoy.
When the ADA Protects Workers In Regards to Opioid Use
When it comes to drug use and the ADA, it does not afford any disability protections for “illegal drug use.” Illegal drug use refers to the use, possession or distribution of drugs as defined by the Controlled Substances Act. But an opioid addiction (also known as an opioid use disorder), is an ADA-recognized disability.
Additionally, if an employee takes prescription opioids to manage an underlying medical condition that the ADA recognizes as a disability, then the employee’s use of opioids with a prescription may be protected by the ADA. Opioid-based employment discrimination often occurs in the following circumstances:
- The employee is taking an opioid pursuant to a valid medical prescription. This includes opioids taken to treat opioid addiction.
- The employee is addicted to opioids (but is not using them and is currently receiving treatment for the addiction.
- The employee used to be addicted to opioids and is taking steps to avoid a relapse.
How the ADA Protects Against Opioid Discrimination
The most obvious form of discrimination will be overt discrimination by an employer that is the result of the employee’s connection to opioid use. For example, an employer refuses to hire a job applicant because they currently take prescription opioids for pain management. Or maybe after learning that an employee receives Medication Assisted Treatment (MAT) to treat their opioid addiction, the employer refuses to grant the employee a promotion.
Remember that one key requirement for ADA coverage is that the employee is otherwise qualified to perform the required job duties. So if the employee, as a result of current or past opioid use, is unable to safely and effectively perform the job, the employer may have the right to take action against the employee, such as firing or reassigning them to a different position.
One exception to this is if the employer can provide a reasonable accommodation that would allow the unqualified employee to become qualified. We can use a hypothetical to illustrate.
An employee with a documented opioid addiction needs to be in the office during normal business hours, Monday through Friday and this presence in the office is an essential job requirement. But the employee must take Monday afternoons off from work for MAT appointments.
If the employer can reasonably accommodate the employee being out of the office for several hours each week, then the employer can’t discriminate against the employee, at least on the basis of an employee’s inability to do his or her job because of opioid use.
Also, as a general rule, an employer cannot discriminate against an employee (or job applicant) simply for testing positive for opioid use in a drug test. This is true as long as the individual is taking opioids legitimately and the opioid use does not interfere with the individual’s ability to perform essential job functions.
If an employee’s opioid use is protected by the ADA, an employee may be legally entitled to a reasonable accommodation. However, the reasonable accommodation must not be substantially expensive or difficult to provide. In other words, it can’t impose an undue hardship on the employer. At no time will the ADA require an employer to provide an accommodation that allows for lower work standards or excuses illegal drug use.
In the majority of instances, the employee has the burden of asking for a reasonable accommodation. If an employer were to proactively offer one based on a perceived disability, they could be subjecting themselves to legal liability. Also, the employee’s request usually doesn’t need to have any “magic words” to have legal effect.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment-related mandates of the ADA. Employees who believe they are the victims of discrimination under the ADA can file a complaint (technically known as a “charge”) with the EEOC. And depending on where the employee works, they may also take action under state or local disability antidiscrimination laws by also reporting the discrimination to the appropriate state or local agency.