In 2015, more than 33,000 Americans died as a result of an opioid overdose, including prescription opioids, heroin, and illicitly manufactured fentanyl, according to the National Institute on Drug Abuse (NIDA). That same year, an estimated two million people in the U.S. suffered from substance use disorders related to prescription opioid pain relievers, and 591,000 suffered from a heroin use disorder.

Approximately 21 to 29 percent of patients prescribed opioids for chronic pain misuse them. NIDA estimates that about 80 percent of individuals who use heroin first misused prescription opioids. The Center for Disease Control and Prevention (CDC) reports that overdose deaths involving synthetic opioids, excluding methadone, increased 72 percent from 2014 to 2015. In 2014, more than 80 percent of all fentanyl seizures were concentrated in just 10 states, including Pennsylvania and New Jersey.

These stark figures present an ominous backdrop for society, and, in particular, workplaces. Anecdotal information suggests that many of the victims and users of opioids are young adults, who otherwise would be embarking on careers and lives filled with promise and optimism. Sadly, the above-cited numbers are expected to increase when calculated for 2016 and 2017, and are expected to continue to climb despite public awareness and programs initiated to address the crisis. The financial and emotional costs to families, communities and employers are staggering, and they are left with few available practical measures to counteract the impact of this crisis.

For employers, the available tools to address the issue primarily come under the Americans with Disabilities Act (ADA)/Family Medical Leave Act (FMLA) framework. Those laws, and their state-law counterparts, may be utilized to address drug use and treatment, though treatment may not return the affected employee to work. What's left is a workforce where many employers find it difficult to keep some segments of their employees employed. If affected employees, though now “clean,” incurred criminal convictions from drug use, they may be unemployable. This article will address employers' responsibilities under the ADA to accommodate employees and address opioid abuse. However, employers should note workplace issues may result from leave and employee criminal convictions related to opioid abuse, and employers may wish to consult with an attorney regarding such issues.

The ADA covers private, state and local government employers with 15 or more employees on each working day for 20 or more weeks in either the current or prior calendar year. The ADA prohibits discrimination against applicants and employees who meet the statute's definition of a “qualified person with a disability.” The ADA's related regulations state that it is unlawful for a “covered entity” to “discriminate on the basis of a disability against a qualified individual” in regard to various aspects of employment, including, but not limited to, recruitment, advertising and application procedures; hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring; job assignments, classifications, organizational structures, position descriptions, lines of progression and seniority lists; and leave. A “disability” is defined in the ADA as (a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of such impairment; or (c) being regarded as having such an impairment.

A “qualified individual” with a “disability” under the ADA is a person who can satisfy the requisite skill, experience, education and other job-related requirements and can perform the “essential functions” of a position with or without reasonable accommodation. The term “essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. The statute and applicable regulations include descriptive circumstances as to what makes a job function “essential.”

The term “reasonable accommodations” is addressed throughout the ADA and its regulations. The ADA balances the “reasonableness” of the accommodations against an “undue hardship” potentially imposed on an employer in determining whether the requested accommodations must be made available, determined on a case-by-case basis. Essentially, a covered entity is required, absent an undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” or “record of” prongs, but not solely under the “regarded as” prong.

In dealing with substance abuse issues, one defense available to employers under the ADA is the “direct threat” defense. Under the regulations, a “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a 'direct threat' shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job.” 29 C.F.R. §1630.2. This assessment shall be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual would pose a “direct threat,” the factors to be considered include: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur; and (d) the imminence of the potential harm. An employer may institute a job qualification that an employee must not pose a direct threat to the health and safety of others in the workplace, even if reliance on the qualification might screen out or tend to screen out, or otherwise deny a job or benefit to, an individual with a disability.

With respect to drug use and addiction, the ADA terms “disability” and “qualified individual with a disability” do not include individuals currently engaging in illegal drug use, when the covered entity acts on the basis of such drug use. However, the terms “disability” and “qualified individual with a disability” may not exclude an individual who:

• Has successfully completed a supervised drug rehabilitation program and is no longer engaging in illegal drug use, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal drug use; or
• Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
• Is erroneously regarded as engaging in such use, but is not engaging in such use.

Challenges for an employer occur in determining when someone may be a “current user” or engages in “casual use” and is not “addicted.” Casual use is not a disability under the ADA, as only individuals who are addicted to drugs, have a history of addiction, or who are regarded as being addicted, demonstrate “impairment” under the law. The United States Equal Employment Opportunity Commission (EEOC) has defined “current” to mean that the illegal drug use occurred “recently enough” to justify an employer's “reasonable belief” that drug use is an ongoing problem.

Under the EEOC's Technical Assistance Manual on the ADA, if an individual tests positive on a drug test, the individual will be considered a “current” drug user so long as the test is accurate. Furthermore, “current” drug use is illegal drug use that has occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an ongoing problem. “Current” is not limited to the day of use, or recent weeks or days, but is determined on a case-by-case basis. (EEOC Technical Assistance Manual on the Employment Provisions (Title I), of the ADA, Section 8.3 (1992)).

The Third Circuit addressed the issue similarly in Salley v. Circuit City Stores, 160 F. 3d 977 (3d Cir. 1998). Without repeating all of the pertinent facts, the court upheld the termination of a long-term employee for addiction relapse after several years of sobriety. Noting that seeking addiction treatment was “praiseworthy,” the court remarked that appellant's termination was proper, as “there is no evidence that his addiction, as opposed to his drug-related misconduct, caused [the employer] to fire him.” The court further added: “[W]e note that we have found no case in which a three-week period of abstinence has been considered long enough to take an employee out of the state of 'current' user ….” Id. at 980, n.2. Regarding the applicable ADA section, 42 U.S.C. §12114(a), the court stated: “[T]his section … ensures that current use, even if it is a natural consequence of an addiction disability, may be grounds for termination under the ADA. Congress has obviated the need for us to determine the metaphysical question whether use is part and parcel of an addiction disability; if the use is current, the ADA does not apply” (emphasis added).

Though employers may have some legal recourse to address opioid abuse in the workplace, in the current climate of massive (and increasing) opioid addiction, the status quo may be insufficient to address the myriad issues confronting employers, families and employees. Employers require reliable employees, families rely on income support, and employees depend on present and engaged peers in order to meet the daily requirements of their jobs. The opioid crisis cuts across all ethnic, socioeconomic, gender and age categories, and the Trump Administration declaring a “public health emergency” demonstrates the depth of the problem.

There may be hope for progress. Opioid addiction is frequently described as a disease, with society's recognition markedly different from the outlook presented several decades ago, during the crack epidemic. Whether employment laws will be amended and modified to address recurrent addiction and rehabilitation, and whether the definitions of “reasonable accommodation” and “undue hardship” will be expanded, remains to be seen. However, as more opioid addicts, some of whom are prominent community members, lawmakers and their neighbors and peers, and the related consequences of addiction are recognized, the prospect of legislative enactments to meet these challenges, even in the workplace, may not seem far-fetched.

Homel and Hauser are associates in the Yardley, Pennsylvia, office of Hill Wallack, where they are members of the Employment & Labor Law and School & Municipal Law practice groups. Truelove is a partner in the firm's Employment & Labor Law practice group. All three are licensed to practice in New Jersey as well as Pennsylvania.