The opioid epidemic is affecting workplaces across the country. Because opioids can be lawfully prescribed (but are increasingly abused), employers must tread carefully when taking adverse action against opioid users to avoid running afoul of the Americans with Disabilities Act (ADA). “Recovery-friendly” workplaces may provide an alternative solution to help combat the crisis, but that approach should be considered with caution.
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The Opioid Epidemic
The Trump administration has declared the nationwide opioid epidemic a “public health emergency.” To combat the problem, the U.S. Senate Committee on Health, Education, Labor and Pensions has proposed a bill that would provide the U.S. Department of Labor (DOL) with grants to support state efforts to fight the crisis’s effect on the workforce, such as providing training to identify prescription drug or opioid abuse and supporting addiction treatment services.
According to the Mayo Clinic, opioids are the third most commonly prescribed medications, which naturally means employees are reporting to work under the influence. Opioids are found in commonly prescribed pain management drugs such as morphine and Vicodin. They can cause side effects such as impaired cognitive ability, dizziness, and drowsiness. Employers are understandably concerned about keeping their workplaces drug-free, maintaining a safe work environment, and preventing the impacts of opioid abuse—e.g., decreased productivity, increased absenteeism, and higher medical expenses.
The ADA and Drug Use
In the midst of mass media coverage of the epidemic, it’s important to remember that although opioids are being abused at an alarming rate, not all opioid use is problematic. Under the ADA, employees who are currently engaged in illegal drug use are not considered qualified individuals with a disability. For instance, if an employee reports to work under the influence of an illegal drug, she isn’t entitled to protection under the ADA. However, employees who are prescribed opioids to treat a disabling condition are protected under the ADA unless they pose a direct threat to themselves or others.
Taking adverse action against an employee who lawfully uses opioids without further inquiry violates the ADA. In other words, to refuse to employ someone who lawfully uses opioids, an employer must show that (1) there is a high probability that the individual will cause substantial harm to the health and safety of himself or others and (2) the risk of harm cannot be eliminated or reduced by a reasonable accommodation.
That can be a high standard to meet, and it requires an individualized assessment based on the person’s present ability to safely perform the essential functions of the job. In most cases, a medical opinion is needed. But when an obvious, immediate risk is present (for instance, an employee appears visibly impaired and drugs are the likely cause), employers should act quickly to mitigate potential harm. However, don’t immediately terminate the employee, which could give rise to a “regarded as” disability discrimination claim. Rather, if the impairment creates an immediate safety risk and there’s reasonable suspicion of drug use, it’s permissible to send the employee for a “for cause” drug test or medical evaluation at the company’s expense.
Drug Testing
The ADA prohibits preemployment medical examinations or inquiries that are designed to reveal information about disabilities, but tests designed to detect the illegal use of drugs are permissible. But drug tests detect both legal and illegal substances. Because opioids are legal when used as prescribed, the ability to detect them could prompt an employer to disqualify a candidate who is taking medication to treat a disabling condition. Automatically disqualifying a job applicant or terminating an employee who tested positive for opioids can run afoul of the ADA.
To avoid making a decision that may be based on a candidate’s or employee’s disability, give her an opportunity to explain whether prescribed medications caused the positive test result. Such inquiries are best handled at the outset through the medical facility administering the test. You will avoid learning of a disability and learn only of the job candidate’s or employee’s illegal use of drugs (even if the drug could be lawfully prescribed, such as an opioid, but is taken without a prescription and is therefore not lawfully used). That way, you are insulated from knowledge about the employee’s or applicant’s medical condition.
‘Recovery-friendly’ Workplaces
While many drug-free workplace policies rely solely on the use of drug tests to identify and terminate violators, an alternative approach is gaining traction across the country—comprehensive drug policies aimed at creating “recovery-friendly” workplaces. Often, opioid use (or abuse) begins with a work-related injury for which the drug was prescribed in the first place. Employers recognize the connection and want to help facilitate employees’ recovery. Earlier this year, New Hampshire’s governor announced an initiative to encourage employers to create “recovery-friendly” workplaces by providing resources to employers on a dedicated webpage, and several national employers with locations in the state have publicly pledged their support. Rhode Island announced a similar initiative in March.
Rather than incentivizing employees to conceal drug use for fear of losing their jobs, under revamped comprehensive policies, an employer grants clemency to employees who voluntarily come forward and pursue recovery with the employer’s assistance. Some employers provide workplace training to educate employees on the negative physical and mental effects of drug abuse in hopes employees will seek help.
Treatment programs could—but aren’t required to be—sponsored by the employer. Health insurance plans might offer resources or even funding for treatment, and HR personnel should be familiar with what options are covered by their employer-sponsored health plan and advise employees accordingly. Employers might also host individual counseling or onsite support groups such as Narcotics Anonymous or offer yoga or mindfulness sessions to promote general wellness.
Under appropriate circumstances, employees might seek treatment while maintaining their employment. That allows employees to continue earning a paycheck and helps employers maintain adequate staffing. Of course, employees holding safety-sensitive positions must be evaluated on an individual basis to determine if continued employment poses a direct threat. Employers are entitled to enforce their workplace policies, including prohibitions on illegal drugs.
A comprehensive approach makes sense from an ADA perspective as well. Although current users of illegal drugs are not protected under the ADA, opioid abuse presents a unique challenge: An employee may very well be disabled under the ADA and still have an addiction to the very drug used to treat the disabling condition. Therefore, an employer could avoid liability for disability discrimination by engaging in the interactive process and supporting the employee through appropriate treatment while still maintaining a zero-tolerance stance on drugs in the workplace.
Bottom Line
Be cautious about offering a leave of absence as an accommodation for employees to attend a rehabilitation program because doing so may obligate you to offer leave in other situations as well. In addition, although current illegal drug users aren’t protected, employees who have recovered from an addiction may be considered disabled and are subject to protection under the ADA.
If you have questions about the ADA or another employment concern, contact the author at angela.johnson@faegrebd.com or any of Faegre Baker Daniels’ labor and employment attorneys.