Washington, DC (WorkersCompensation.com) – A safe work environment and opioid use don’t exactly go well together, so it’s no surprise that employers would want to rid their workforces of opioid users.
However, new technical assistance from the U.S. Equal Employment Opportunity Commission advises employers and employees that, under certain circumstances, the Americans with Disabilities Act’s antidiscrimination provisions protect workers who use opioids. Based on the EEOC guidance, the following are some dos and don’ts for employers to follow when considering safety and opioids in the workplace.
- Do feel free to take action against illegal drug use. The ADA allows employers to terminate employees who illegally use drugs, including opioids. This is true even if no safety problem is involved.
- Do give employees a chance to provide information about lawful opioid use. An employer can do this before administering a drug test by asking whether an employee or prospective new hire is taking medication. Alternatively, the employer could ask all people who test positive for an explanation.
- Do consider reasonable accommodations. If an employee isn’t using opioids illegally (meaning she has a prescription), it may be possible to change the way things are normally done at work to allow the employee to continue working safely and effectively.
- Do offer reasonable accommodations to “recovered” employees. Even if an employee is no longer using opioids after being addicted, employers may have to provide accommodations for disabilities that employees had in the past. For example, an employee may need an altered schedule to attend support group meetings or therapy sessions to help avoid relapse.
- Do document safety risks. To remove an employee from the job for safety reasons, the evidence must show that the employee poses a significant risk of substantial harm. Remote or speculative risks won’t be good enough. To make sure that it has enough objective evidence, an employer can ask an employee to undergo a medical evaluation.
- Don’t automatically disqualify an employee for legal opioid use. Instead, employers must consider if there is a way for the employee to do the job safely and effectively.
- Don’t terminate or refuse to hire an employee just because she is in a treatment program. Even if the treatment program involves opioid medication, an employee cannot be terminated or denied a job unless the employee cannot do the job safely and effectively.
- Don’t lower safety, production, or performance standards. The ADA doesn’t require employers to lower standards or eliminate essential functions to provide reasonable accommodations to employees.
- Don’t reject an accommodation request just because an employee didn’t follow specific procedures. Employees may request accommodations any time, and it doesn’t take “magic words” or paperwork to make a request. An employee only needs to indicate that he needs a change at work because of a medical condition to start the interactive process for determining whether an accommodation can be made and, if so, what it should be.