On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance explaining exposure to a discrimination lawsuit for employers who fire their staff for taking opioids.
To avoid being sued, employers must take the following steps upon discovering that an employee is taking opioids:
1. Determine if the opioid use is legal or illegal.
2. Provide Reasonable Accommodations.
3. If an employee cannot do the job safely and effectively even after being provided with a reasonable accommodation, document objective evidence that the employee poses a significant risk of substantial harm. An employee cannot be removed for remote or speculative risks.
4. It is recommended that employers engage in an interactive process, as required in NYC, prior to making any final determinations. Failing to sue interact can be, in itself, the basis of exposure. To understand further, see our blog, 5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate.
You can access EEOC’s guidance HERE and HERE.
To avoid being sued, employers must take the following steps upon discovering that an employee is taking opioids:
1. Determine if the opioid use is legal or illegal.
- The ADA allows employers to terminate employees, or take other measures, based on the illegal use of opioids. However, legal or prescriptive opioid use cannot be a ground for automatic disqualification and employers must consider a way for the employee to do the job “safely and effectively”
- Employees who test positive to a drug test must also be given an opportunity to provide information about their legal drug use that may cause a drug result to show opioid use. The employer can ask the employee before the test is done if he/she is taking any such medication or the employer can ask all employees who test positive for an explanation. Such should be established by protocol and implemented consistently.
2. Provide Reasonable Accommodations.
- Employees who legally use opioids must be given a reasonable accommodation before getting fired or not considered for a position. This also applies to employees who have a history of opioid, or treatment for opioid addiction, which an employer thinks can interfere with safe and effective job performance.
- Employees may also request a reasonable accommodation from taking prescription opioids to treat pain or from having other medical conditions related to opioid addiction as long as the condition is a disability under the ADA.
- It is the employees’ responsibility to request a reasonable accommodation and employers cannot legally fire or refuse to hire or promote an employee for making the request. A request protocol should be established and applied consistently.
- Employers must provide the reasonable accommodation if it does not involve significant difficulty or expense.
3. If an employee cannot do the job safely and effectively even after being provided with a reasonable accommodation, document objective evidence that the employee poses a significant risk of substantial harm. An employee cannot be removed for remote or speculative risks.
4. It is recommended that employers engage in an interactive process, as required in NYC, prior to making any final determinations. Failing to sue interact can be, in itself, the basis of exposure. To understand further, see our blog, 5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate.
You can access EEOC’s guidance HERE and HERE.
