SUBSTANCE ABUSE TREATMENT INDUSTRY NEWS #5
Federal Guidance Clarifies Rights of Opioid Users in the Workplace
On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released an administrative guidance document that addresses the rights of opioid users under the Americans with Disabilities Act (“ADA”). The EEOC document clarifies that while illegal drug use is not protected from adverse employment action, those persons who are using opioids, are addicted to opioids (Opioid Use Disorder), or were suffering from Opioid Use Disorder in the past may be entitled to a reasonable accommodation under the ADA.
What Exactly is an Administrative Guidance?
Before taking a look at the substance of the EEOC’s guidance, it would help to understand what exactly an administrative guidance document is and how it affects people. Administrative agencies, including the EEOC, often publish guidance documents to inform the public on how best to comply with a particular law or regulation. And although these guidance documents are non-binding as a whole, they often serve as persuasive authority regarding the correct interpretation of the law.
So, in this case, these guidance documents are most relevant to employers and employees that fall under the ADA—public and private entities of 15 or more employees. It can also be applied to the interpretation of state civil rights laws that parallel the ADA; for example, the Florida Civil Rights Act prohibits employment practices that discriminate based on handicap, also covering public and private employers with 15 or more employees.
Examining the Substance of the Guidance Publication
Although the EEOC publication is meant to inform employees about their rights, the practical effect of this guidance will require employers to review and/or reassess policies that affect persons suffering from opioid use disorder. The full text of the documents can be found here; however, the following list summarizes some of the major points:
- Illegal opioid use is NOT protected, regardless of whether the employee has had performance and/or safety issues;
- Before disqualification or termination of an employee that uses opioids legally, such as in a medication assisted treatment (MAT) program, an employer must first consider whether there is a way for the employee to still do the job “safely and effectively”;
- Persons leaving work to seek treatment for opioid use disorder may be entitled to sick leave, unpaid but job-protected FMLA leave, or any other accrued leave—whether paid or unpaid;
- Does NOT require that employers lower performance standards, eliminate essential job functions, or excuse unacceptable behavior, BUT the employer must make an effort to implement an employee’s request for a reasonable accommodation;
- Recommendation that employers offer an employee an opportunity to explain a positive drug test.
More Evidence of Efforts to Destigmatize Substance Use Disorder
Last week, this blog featured a post discussing the efforts made by Florida courts to address substance use disorder issues during "Opioid Use Disorder Awareness Month." Similar to the purpose of this EEOC publication, the event focused on raising awareness about opioid use disorder through education and training. Here, those same educational efforts are being applied to the workplace.
Hopefully, by breaking down the barriers in the conversation surrounding substance use disorder, valuable discussions can take place, and seeking treatment need not bring shame upon the person seeking it. Instead, it can be viewed as it should be: an important step in taking control of one’s life and achieving long term remission and recovery.
At Romano Law Group, Rainer Boggiano is focused on representing plaintiffs in catastrophic injury matters, including wrongful death, negligence, medical malpractice, and products liability litigation.
Rainer earned his Juris Doctor from the University of Florida Levin College of Law in Gainesville, Florida and his Bachelor of Business Administration in Economics from Florida Atlantic University in Boca Raton, Florida.
While attending law school, Rainer served as a judicial extern at Florida’s Fourth District Court of Appeal and a legal intern for ADT Security Services at its corporate headquarters in Boca Raton. He graduated with multiple Dean’s List honors and was a Pro Bono Award recipient in recognition for completing 150+ hours of community service. Rainer assist with the Pro Bono work on behalf of the Florida Association of Recovery Residences.
Rainer is active in several community organizations, having served as a volunteer for the 15th Judicial Circuit’s Guardian ad Litem Program, a tutor at the Mandel Public Library’s homework center, and a mentor for several local non-profit organizations.
Susan Ramsey is both an attorney and an RN. Ms. Ramsey’s professional experience began as a Registered Nurse in the Intensive Care Unit at Yale New Haven Hospital. While pursuing her Bachelor’s Degree, she was a counselor with the New Haven Rape Crisis Program. During her time with the Program, Ms. Ramsey counseled sexual assault survivors and performed seminars for local police departments, universities, and high schools.
During her time working as a registered nurse, Ms. Ramsey decided to attend law school. Ms. Ramsey graduated from CUNY Law School, and has practiced law in several different State and Federal Courts. She is a Florida Heath Care Risk Manager and a member of the Palm Beach County Sober Home Task Force. Susan is Pro Bono Counsel for the Florida Association of Recovery Residences.
Ms. Ramsey actively litigates cases involving catastrophic injuries and wrongful death on behalf of survivors, cases include injuries suffered by victims of professional