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Employers Walk Fine Line With Opioid-Addicted Workers

Aug. 2, 2019, 10:01 AM

Workers suffering from addiction are protected under the federal Americans with Disabilities Act, unless they’re currently using drugs illegally—a legal wrinkle that creates uncertainty for employers and employees in the midst of a national opioid epidemic.

“Case law is all over the map on this question as to what counts as current use,” said Charlotte Lanvers, a trial attorney in the U.S. Justice Department’s Civil Rights Division, where her job includes pursuing disability discrimination cases.

Some federal circuits have ruled “current use” should include illegal drug use as much as a few weeks or a few months ago, Lanvers told compliance officers and federal enforcement staff at an Equal Employment Opportunity Commission conference in Atlanta on July 31. The U.S. Court of Appeals for the Tenth Circuit said in a 2011 decision that completion of a 28-day drug rehab program wouldn’t necessarily clear an employee for disability protection. However, the court specifically said it wasn’t adopting a “bright-line rule” defining how many drug-free days or months were required for ADA protection.

The workplace is one of multiple fronts where the U.S. is battling an epidemic of opioid addiction and overdose, which includes both prescription painkillers and illegal drugs such as heroin. Overdose deaths involving opioids climbed to more than 47,000 people in the U.S. in 2017, according to Centers for Disease Control and Prevention data.

Addiction Treatment Drugs Protected

Medication-assisted treatment is considered to be the most effective option for breaking opioid addiction while reducing withdrawal symptoms, said Antonette Sewell, regional attorney for the EEOC’s Atlanta office who spoke on a panel along with Lanvers.

The treatment itself sometimes prompts suspicions from employers, based on the myth that the patient is only replacing one addiction with another, she said.

But firing a worker who’s undergoing treatment or refusing to grant them reasonable leave time—such as for workers who need to visit a methadone clinic daily—could be considered disability discrimination under the ADA, Lanvers said.

When taken according to a doctor’s orders, “these medical assisted treatments do not result in the euphoria or high that’s produced from using opioids, and they can be safely administered for months or years,” Sewell said. Although the medications used in treatment would likely show up on a drug test administered by the employer, using these medications as prescribed by a doctor doesn’t void a worker’s ADA protections in the way current illegal drug use would, she added.

A “zero tolerance” approach to employees testing positive for drugs puts employers at risk for other reasons, said Courtney Leyes, a Fisher & Phillips attorney in Memphis, Tenn., who represents employers. For example, when a worker is prescribed an opioid painkiller, there’s an underlying medical condition that might also qualify for disability protection.

“If you just fire somebody for using opioids, you could be firing someone for having an underlying disability,” Leyes told Bloomberg Law on Aug. 1.

People undergoing opioid addiction treatment tend to relapse, sometimes multiple times, adding another complexity to this area of law, Sewell said.

“The ADA doesn’t really mesh very well with that” because of the exception for current drug use, she said.

The law treats illegal drug addiction differently than alcoholism, notes the human resources industry group Society for Human Resource Management, because a person currently using alcohol isn’t automatically denied ADA protections.

Employer Defenses

The EEOC and Justice Department pursue addiction-related discrimination cases under the ADA, among other employment-related claims, through a partnership the agencies reached in 2015.

Recent cases have indicated the EEOC is increasing its focus on this area of disability law, Leyes said.

“We are dealing with a crisis, but you contrast that with the employer’s interest in keeping a safe workplace,” she said. “It is a fine line.”

Employers’ defenses against disability bias claims can include that a worker didn’t meet specific job qualifications or that the worker posed a direct threat to safety in the workplace, Lanvers said.

Convincing the EEOC or a court of these defenses isn’t easy, though, and requires a specific, objective evaluation of the situation, she said. The same goes for arguing that accommodating a worker’s addiction would pose an undue hardship on the employer.

“I can tell you in the Eleventh Circuit that is a tough burden to prove for employers and also requires an objective analysis based on the individual facts of that case,” she said.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Cynthia Harasty at charasty@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com