The EEOC recently issued guidance for employees on the legal use of opioids (to view, click here). The guidance is useful not only for dealing with employee opioid use but the use of any legal drug, including cannabis. Here are some important takeaways from the EEOC’s guidance:
An Employee Can Be Fired for Using Opioids, or Any Drug, Illegally.
- It is not a violation of the Americans with Disabilities Act (ADA) or any other law to fire an employee for using illegal drugs. While it is against the law in Illinois to fire an employee for using a legal drug or substance outside of work, this does not apply to illegal drugs.
An Employee Cannot Be Fired Solely for Using Opioids, or Any Drug, Legally.
- If an employee has a prescription for a drug and uses it according to the doctor’s orders, it is likely a violation of the ADA to discipline the employee solely for using the drug. And as discussed above, it is a violation of the Right to Privacy in the Workplace Act to discipline an employee for using a drug legally outside of work.
- If an employee’s use of a drug interferes with his or her work performance, then the employee can probably be disciplined. Before doing that, an employer should attempt to give the employee accommodation and figure out a way for the employee to do his or her job while also taking the medication.
- One important thing that the EEOC notes in its guidance: “an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.”
An Employee Addicted to Opioids or Other Legal Drugs Should Be Given an Accommodation to Treat the Addiction.
- Opioid addiction, commonly referred to as opioid use disorder, is a disability covered by the ADA. An employee cannot be fired solely due to opioid addiction. An employer needs to allow an employee to get treatment for the opioid addition before imposing discipline. This also applies to employees who are not addicted to opioids, but have been in the past and need treatment to avoid relapses. Also, if an employee develops a medical condition due to opioid addiction, this too entitles the employee to reasonable accommodation.
An Employer Should Allow an Employee to Provide an Explanation About a Positive Drug Test Before Taking Action.
- Again, it is a violation of the ADA to discipline an employee solely for taking a drug he or she has been prescribed. Therefore, employers should ask an employee for an explanation of why the employee tested positive for the opioid or other legal drugs before taking action against the employee.
Follow Our Advice When Responding to an EEOC Charge of Discrimination.
- Even if you do everything right, an employee who you disciplined may file a charge of discrimination with the EEOC. If that happens, follow our advice on how to respond to a charge of discrimination or contact me by email: mdicianni@ancelglink.com or phone: 1(312) 604-9125.
