by Jonathan R. Mook, DimuroGinsberg, PC
Addiction to prescription drugs, especially opioids, has become a crisis in this country. Not a day goes by that we don’t hear about the mounting number of shattered lives and tragic deaths attributed to this growing epidemic. Employers are feeling the brunt of the crisis as employees are increasingly becoming addicted to prescription drugs, yet still coming to work. If you have an employee who is struggling with such an addiction, you need to be particularly mindful of the protections he may have under the Americans with Disabilities Act (ADA). The following Q&A provides some important guidance on how employers should comply with the law when dealing with addiction issues. 
Q Is an employee addicted to prescription drugs protected by the ADA?
A Maybe. If the employee is legally using prescription drugs, the addiction would qualify as an ADA disability as long as it constitutes a physical or mental impairment that substantially limits at least one of her major life activities. The analysis for determining whether an addiction constitutes a disability in and of itself is no different from the analysis for other types of medical impairments. Additionally, if the employee has been prescribed drugs to mitigate the adverse effects of another medical impairment, such as a back or knee problem, then she may be disabled on the basis of that impairment.
However, if the employee is illegally using prescription drugs by, for example, obtaining the prescription under false pretenses, she would not be covered by the ADA. That’s because the ADA exempts the illegal use of drugs from its definition of what constitutes a disability.
Q If I find out about an employee’s addiction, can I terminate him?
A You should be cautious about taking any adverse action against an employee based on his addiction alone. Generally, you should take an employment action based only on an employee’s performance issues, not because of any medical condition he has. If the employee hasn’t exhibited any difficulties in performing his job and he isn’t in a safety-sensitive position, then I would counsel you to refrain from taking any employment action against him.
Q What if an employee informs me of her addiction in response to a discussion about her performance problems?
A If the addiction would constitute a disability (see my answer to the first question), you may need to take steps to reasonably accommodate the employee. An accommodation might involve unpaid medical leave so she can seek treatment for the addiction.
If you have concerns about the employee’s addiction causing safety problems at work, then you should consider requiring her to undergo a fitness-for-duty (FFD) examination by a healthcare professional of your choice. Depending on what the FFD examination reveals, you could take an employment action if the employee’s addiction is likely to cause a safety issue.
Q If an employee is under the influence at work, what should I do?
A If the employee exhibits abnormal behavior that is observed by coworkers or a supervisor, the supervisor should document his observations as well as those of the other employees. Based on those documented observations, you may require the employee to undergo a drug test to determine whether there are drugs in his system and, if so, whether he is taking those drugs legally.
If an employee’s use of prescription drugs isn’t legal, he isn’t protected by the ADA, and you may take an employment action, up to and including termination. If the employee is legally using prescription drugs that are affecting his behavior at work, you should determine whether he can continue to work with a reasonable accommodation. This may include providing leave without pay for medical treatment for the addiction or a transferring the employee to a vacant position for which he is qualified.
Q What if the employee is in a safety-sensitive position (e.g., forklift driver or machine operator)?
A If you have information, even secondhand from a coworker, that an employee in a safety-sensitive position appears to be under the influence, you should take appropriate steps to ensure that the employee is safely performing her job. As I mentioned above, you should obtain a statement from the coworker about the behavior that made him suspect the employee is under the influence, and you may require a drug test based on reasonable suspicion.
Under the ADA, random testing for the illegal use of drugs is permitted. However, if the drug test includes an inquiry into the legal use of prescription drugs, you can impose random testing only if it is job-related and consistent with business necessity, which would normally be the case in a safety-sensitive position.
Q What about urging an employee with an addiction problem to seek treatment?
A If you have an employee assistance program (EAP) or your health insurance plan covers treatment for addiction, you may remind the employee that those options are available, but you shouldn’t require him to obtain treatment for the addiction as a condition of continued employment. The Equal Employment Opportunity Commission (EEOC) takes the position that you should operate as an employer, not as a social service agency or a medical doctor, when it comes to dictating an employee’s medical treatment. The EEOC says getting treatment for an addiction is the employee’s choice.
If the employee refuses to get treatment and his job performance continues to be subpar, you may take an 
employment action based on his performance issues, but not because of his failure to get treatment. In this situation, you must be careful to adequately document the employee’s performance problems so the basis for your action is clear.
DiMuroGinsberg, PC partner Jonathan R. Mook is a nationally recognized authority on the ADA. He may be contacted at jmook@dimuro.com.
Need to learn more? Jonathan Mook will be presenting “Invisible Disabilities: What’s Protected Now, What Isn’t, and How to Provide ADA-Compliant Accommodations” at the at the 22nd Advanced Employment Issues Symposium in Las Vegas on November 17. Jonathan’s presentation will discuss a number of issues involving “invisible disabilities,” including concerns that an employee’s use of prescription drugs could pose workplace safety risks and best practices for dealing with employees who are struggling with addiction to drugs or alcohol. For more information on AEIS, click here.