The US Department of Justice (DOJ) shares responsibility for enforcing the Americans with Disabilities Act (ADA) with several other federal agencies, including the Equal Employment Opportunity Commission (EEOC). The ADA does not consider it a disability when a user actively engages in use of illegal drugs, but individuals who are lawfully using opioid medication, are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT), or have recovered from their addiction, are protected from disability discrimination under the ADA.
In addition to existing EEOC guidance on the subject, on April 5, 2022, the DOJ issued guidance on legal protections for employees who are in treatment or recovery for opioid use disorder (OUD). This guidance provides information about how the ADA can protect individuals with OUD from discrimination. The guidance explicitly outlines protections for employees in treatment or recovery from OUD and states that employees using prescription medication such as methadone or suboxone are protected from discrimination. This is consistent with the principles of the ADA which protects employees who have a past history of substance abuse, those who are regarded as having an opioid use disorder, and those associated with an individual who has an opioid use disorder as having a disability and being protected from discrimination.
The guidance does not affect the employer’s ability to drug test employees under federal, and where applicable, state law, but employers may not discriminate against employees who legally use prescribed medication for OUD unless the medication causes a safety issue to the employee or other workers. Resulting in the inability of an employer to deny or fire employees who demonstrate a positive test due to the use of a legally prescribed medication to treat opioid use disorder.
While this guidance focuses on individuals with OUD, employers should note that the legal principles discussed also apply to individuals with other types of substance use disorders.
Next Steps For Employers
The guidance does not bring any new obligations for employers under federal law, but it does provide clear insight on employment practices that would be deemed to be in violation of the ADA. Employers must remember that ADA protections apply to individuals participating in supervised rehabilitation or drug treatment programs; therefore, employers should ensure that they are not relying on blanket exclusionary practices in recruiting, hiring and establishing other terms and conditions of employment for recovering addicts. Instead, employers must ensure that they are engaging in an interactive process prior to making a determination about the individual’s ability to perform the job or whether any safety hazard may exist.
Further, employers should engage in regular training for human resource professionals and managers/supervisors to ensure that they understand how to address disability related issues and that they are informed of the business’ obligations under federal, state and local laws to provide reasonable accommodations unless an undue hardship exists.