Opioid abuse is rampant, and it is having a ripple effect on the workforce. According to the CDC, the opioid epidemic kills an average of 115 Americans daily and, in 2016, around 66 percent of the more than 63,600 drug overdose deaths involved an opioid. The most common drugs involved in prescription opioid overdose deaths included methadone, oxycodone and hydrocodone (e.g., Vicodin®).

Employers are managing their own symptoms of the crisis, such as employee leave, tardiness, decreased productivity, poor performance, work-related accidents, and increased workers' compensation and health insurance costs. According to one study, 71 percent of U.S. employers have been affected by employee misuse of legally prescribed medications, including opioids.

Historically, an employee's drug use in violation of a “drug free workplace” policy almost surely meant termination. The tide is shifting, at least in part due to the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101, et seq., and state analogs, which obligate employers to assist and accommodate “disabled” employees who are legally taking prescription medication or trying to overcome drug abuse.

While most employers are aware of the opioid epidemic, and many have dealt with it firsthand, most still feel grossly unprepared to deal with prescription drug use (and misuse) in the workplace. Indeed, our nation's response to this epidemic has been hindered by a lack of understanding and adequate support by employers. This might be due to the duality of the epidemic. On the one hand, employers may need to accommodate an employee who is properly taking a legally prescribed painkiller to treat another medical condition. An employee's legal opioid use can cause particular problems for employers, as opioids have side effects that can impair an employee's ability to work. Alternatively, employers may need to accommodate an employee recovering from an opioid addiction—an addiction that could have been caused by the employee's prior, legally prescribed opioid use. Either way, the employee is entitled to certain protections under the law.

A Primer on Employee Drug Use Accommodation

Congress enacted the ADA to prevent otherwise qualified individuals from being discriminated against in employment based on a disability. 42 U.S.C. §12112(a). A “qualified individual” is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. §12111(8). In addition to obvious examples like termination, an employer discriminates when it fails to make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified employee, unless the employer can demonstrate the accommodation would impose an undue hardship on its business. 42 U.S.C. §12112(b)(5)(A).

Similarly, the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-12, was enacted to “eradicat[e] the cancer of discrimination,” particularly in the workforce, and prohibits employers from discriminating against employees with respect to the terms and conditions of employment on the basis of a protected characteristic, including any disability. Fuchilla v. Layman, 109 N.J. 319, 334 (1988); Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 259 (2010).

While neither the ADA nor NJLAD offers protection to an employee currently engaged in illegal drug use, see, e.g., 42 U.S.C. §12114(a), an employee recovering or rehabilitating from a drug addiction is protected against discrimination, just as is an employee who uses legally prescribed opiates for a medically approved reason. The ADA expressly provides a “qualified individual with a disability” includes an employee who: “has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; 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.” 42 U.S.C. §12114(b)(1), (2) and (3). Thus, an employee enrolled in a rehabilitation program has safe harbor, and an employee who is properly taking legitimately prescribed painkillers cannot be subject to adverse employment action unless the employee cannot fully, safely or capably perform his or her essential job functions, with or without reasonable accommodation. These same protections extend to job applicants.

If an employee or applicant uses a prescription drug (including any opioid) that could interfere with the employee's ability to safely perform an essential job function, the employer must conduct an individualized inquiry to determine whether the employee can safely and effectively perform his or her duties, with or without accommodation, before taking any adverse employment action. 42 U.S.C. §12112(5)(a); 29 C.F.R. 1630.2. An employer concerned an employee's use of legally prescribed drugs could compromise workplace safety can take adverse action against the employee where an individualized assessment gives the employer a reasonable, objective belief the employee poses a “direct threat” to the health or safety of others. 42 U.S.C. §12113(a)-(b).

These ground rules seem straightforward in principle, but are oft-misapplied by employers in practice. What can employers do to discharge their obligations under the law, and appropriately accommodate and help employees avoid and overcome an opioid addiction? The following cases provide some guidance.

Recent Drug-Use Accommodation Case Law

In EEOC v. Foothills Child Development Center, Civil Action No. 6:18-cv-01255-AMQ-KFM (D.S.C. 2018), the EEOC sued a preschool for violating the ADA by discharging an employee after he disclosed his participation in a supervised medication-assisted treatment program. When he was hired, the employee reported his prior opiate addiction and current participation in the program, which included his taking of the legally prescribed drug Suboxone. The employer fired him due to his use of Suboxone. The EEOC contended the employer failed to conduct an individualized assessment of whether (and, if so, how) the Suboxone impacted the employee's ability to safely do his job. The action settled, with the employer paying compensatory damages to the employee. In addition, the employer agreed to a five-year consent decree requiring it to: (i) amend its written drug use policy to include a clear exclusion for individuals who legally and appropriately use prescription medication; (ii) implement an ADA-compliant procedure for performing individualized assessments of employees enrolled in any substance abuse rehabilitation program; (iii) provide annual ADA antidiscrimination and anti-retaliation training to its workforce; and (iv) report to the EEOC the identities of any applicants who were denied employment or employees who lost their jobs due to current or past drug or alcohol use. In prosecuting that case, the EEOC expressed that employers should make decisions based on applicant qualifications and employee performance, not on their history of drug use or participation in a treatment program.

In EEOC v. M.G. Oil Company d/b/a “Happy Jack's”, Civil Action No. 4:16-cv-04131-KES (D.S.D. 2018), the EEOC alleged the employer failed to hire an applicant who tested positive for the presence of a legally prescribed medication, and maintained an illegal policy requiring all employees to report all drugs, including prescription drugs, they were taking. The matter settled, with the employer agreeing to: (i) pay a $45,000 monetary settlement to the applicant; (ii) adopt policies to prevent future hiring issues under the ADA; and (iii) modify its policies to obligate employees to report prescription drug use if, and only if, the employer had a reasonable suspicion of employee drug use and the drugs either were affecting, or could affect, the employee's performance.

In EEOC v. Steel Painters, Civil Action No. 1:18-CV-00303 (E.D. Tex. 2018), the EEOC prosecuted the firing of an employee who had been dependent on opioid medication but was in recovery and receiving treatment for his past addiction. When he was hired, the employee had been in a treatment program for one year. At night after work, the employee took a prescribed dose of methadone per his treatment program. Despite being cleared by the laboratory and his doctor after failing a drug test (which identified the methadone), the employer terminated his employment. The EEOC expressed: “Opioid addiction is a disability that is affecting millions … many are regaining control over their lives by participating in supervised rehabilitation programs. When a worker has a record of such a disability and is performing his job proficiently, an employer cannot lawfully preclude the worker from employment because he is receiving treatment for his addiction.”

In Stewart v. Snohomish County PUD No. 1, 262 F. Supp. 3d 1089 (W.D. Wash. 2017), an employer was ordered to pay $1.8 million in compensatory damages to a former employee for violating the Washington Law Against Discrimination. The plaintiff suffered from severe and chronic migraines. Still, she had satisfactorily worked for the employer for 20 years. Though she generally treated her migraines with over-the-counter medication, when those drugs failed she took a narcotic, Dilaudid, which was prescribed and injected by her doctor. In connection with her intermittent absences from work, her doctor certified that she needed to receive the injections, and if she was allowed a short rest thereafter, she could return to work unimpaired and without restrictions. The employer had a “fitness for duty” policy prohibiting employees from working under the influence of drugs or alcohol, and informed its employees they may have to submit to a drug test if a manager had a reasonable suspicion the employee was impaired. Importantly, the policy made no exception for employees taking prescription medications or for employee accommodation. When the employee unsurprisingly tested positive for opioids, the employer refused to depart from its blanket drug policy and terminated her employment. Finding the employer failed to reasonably accommodate her condition, the court noted that the employer “chose to address [her] through a disciplinary process, rather than an interactive one.” The court held the employer failed to acknowledge the plaintiff's disability, let alone accommodate it, and rather than treat her as an employee having a medical condition, it treated her like a drug abuser.

Important Takeaways

Many lessons can be learned from these cases. For starters, employers should not engage in adverse employment action against employees based on any prejudice, misperception or lack of information about the employee's lawful use of prescription drugs. Employees have a legal right to use legally prescribed drugs, including opioids, to treat or recover from a past addiction, unless such use presents a safety issue or impedes the employee's ability to perform essential job duties.

Employers should not implement blanket drug-testing policies without allowing for any flexibility or exceptions (i.e., prescription drugs), and without reasonable accommodation as may be needed or appropriate under the circumstances. “Drug free workplace” and drug testing policies must be revised to appropriately address prescription drug use, rehabilitation and employee accommodation.

That being said, employers can require that employees consult with their doctors about their prescription medication and whether it will interfere with their ability to safely perform their job. Similarly, employers may require that if any medication prescribed could pose a safety risk, the employee must notify the employer and either take leave or request accommodation, if possible, to protect against safety concerns. Employers also should consider having written job descriptions and expectations for their employees; doctors, in turn, can rely on this information to prescribe the best medication to treat the employee's condition while allowing the employee to safely and capably do his or her job.

Employers should be mindful of their obligation to engage with their employees when addressing any disability, including an employee's past or present drug use. Employers should encourage their employees to seek help for drug dependency and substance abuse; to that end, employers can provide employee assistance programs to their employees. Employers should not stigmatize, ostracize or single out employees who are recovering from, or who may be actively combating, substance abuse.

Employers should be part of the solution to this epidemic; they can start by helping their affected employees. The focus should be on performance. If the employee has a history of good performance, with or without accommodation, the employer should not worsen the problem by taking adverse employment action against the employee. The employer can, and should, find a way to help.

Benjamin E. Widener is a shareholder in the Employment and Litigation practice groups at Stark & Stark in Princeton. He is also chair of the firm's Employment Law Group.