In July 2017, U.S. Food and Drug Administration Commissioner Scott Gottlieb named opioid addiction as his agency’s “biggest crisis.” With opioid abuse and addiction at epidemic levels across the nation, it has become clear that no one is immune. While addicted individuals and their families pay the highest price, employers bear a significant part of the epidemic’s collective burden.

Data shows that, statistically, every adult American knows at least one member of the workforce who has been injured at work, was involved in an accident or underwent hospitalization, and has been prescribed pain medication—likely an opioid—to use while on the job. The unprecedented number of employees across the nation using prescribed (or non-prescribed) pain medications in workplaces has created a host of problems for employers.

The Centers for Disease Control and Prevention’s (CDC) most recent estimate is that every day 142 Americans die from a drug overdose. The leading cause of unintentional death for individuals between the ages of 25 and 54 is now drug overdose (predominantly from opioids), which notably exceeds car accidents. And for the first time, drug overdoses kill more people each year than gun homicides and car crashes combined.

Inherent tensions exist between an employer’s obligations under federal law and its goals to maintain a safe, productive and drug-free workplace. Human resources personnel need to tread carefully through a patchwork of complicated federal laws and regulations, as well as each employer’s internal protocols, while navigating difficult and often emotional conversations with employees. If employers are not careful, allegations of discrimination and increased exposure to liability may result if companies turn a blind eye to the prevalence of opioid abuse.

ADA and FMLA

Generally, opioid prescription abuse or addiction falls under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 and the Family Medical Leave Act (FMLA). To minimize worker lawsuits, Equal Employment Opportunity Commission (EEOC) complaints and Department of Labor (DOL) enforcement actions, it is incumbent upon employers to understand these laws and implement compliance policies to avoid discrimination actions.

Also worth mentioning are Department of Transportation (DOT) regulations, which will likely apply to certain industries. In addition, many state and local governments have anti-discrimination laws on the books that may apply. While not addressed here, any internal discussions or concerns about compliance with the law should include a review of state and local laws in the employer’s jurisdiction.

There is a tension between the ADA provisions and an employer’s interest in providing a safe, drug-free workplace. The ADA prohibits an employer from discriminating against a qualified employee with a disability in the terms, conditions and privileges of employment. The employment practices covered under the ADA are hiring, recruitment, compensation, termination, promotion, job assignments, training, benefits and any other employment-related activity. The ADA applies to both public and private employers with at least 15 employees.

The general rule under the ADA is that employers cannot discriminate against any “qualified individual” with a “disability” who can perform the “essential functions” of the job, with or without “a reasonable accommodation.”

Key issues of the ADA for employers are the various definitions included in the general rule. First, a qualified individual can be either a current employee or a potential applicant.

The definition of a disability is fairly broad: An individual must have a physical or mental impairment that substantially limits one or more major life activities.
Individuals who have a record of such impairment, or who are regarded as having such impairments by others, also qualify as having a “disability” under this definition. Human resources officials also should keep in mind that state laws might define a disability more broadly than federal law, and cover substance abuse and treatment in different ways.

The ADA provides exclusions to protect many individuals who formerly used drugs illegally, and individuals who are recovering from such illegal use or addiction. These ADA protections apply to individuals who:

• have successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, or have otherwise been rehabilitated successfully and are no longer engaging in such use;
• are participating in a supervised rehabilitation program and no longer engage in such use; or
• are erroneously regarded as engaging in such use, but are not engaging in such use.

Obviously, any such individual must be able to meet the other requirements of a disability to be qualified.

Employees who actively engage in illegal drug use are not protected under the ADA.

As such, an employer can address illegal drug use through normal channels of discipline and reprimand, or ultimately terminate employment if so desired. Further, employers will not run afoul of the ADA by enforcing policies prohibiting drug or alcohol use in the workplace. Specifically stated by EEOC regulations, employers may comply with other federal laws and regulations dealing with the use of drugs in the workplace, including the Drug-Free Workplace Act of 1988; regulations applicable to particular types of employment, such as law enforcement positions; DOT regulations; and regulations for safety-sensitive positions established by the Department of Defense and the Nuclear Regulatory Commission.

The FMLA provides that employees have the right to take medical leave in certain circumstances for alcohol and drug treatment. Employees are entitled to take up to 12 weeks of unpaid leave during a 12-month period because of a serious health condition or to care for an immediate family member with a serious health condition. According to DOL regulations, treatment for substance abuse might meet the definition of a serious health condition if the condition requires inpatient care or continuing treatment by a health care provider.

FMLA leave may only be used for substance abuse treatment that is provided by a health care provider or by a provider of services on referral from a health care provider. FMLA leave is only permissible when the person is out of work to engage in and attend substance abuse treatment.

OSHA recognizes the importance of maintaining a drug-free workplace in the promotion of employee safety. In fact, OSHA encourages and supports comprehensive drug-free workplace programs, particularly in work environments involving the operation of equipment and machinery. To complicate matters, OSHA recognizes that any drug testing program must balance employee privacy interests with the employer’s interest in workplace safety.

Considering the complexity of this issue, employers should consult with human resources personnel early and often, and seek advice from legal counsel on how to navigate the patchwork of applicable laws.