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EEOC Issues New Guidance on Employee Opioid Use

    Client Alerts
  • August 24, 2020

In the midst of the global COVID-19 pandemic, it may be easy for employers to forget about the earlier crisis involving opioid addiction in the U.S. Companies continue to struggle with employees who face opioid addiction issues, or whose legal use of opioid pain medication raises questions over safe performance of their job duties.

Earlier this month, the U.S. Equal Employment Opportunity Commission issued two new technical guidance documents intended to assist employees in responding to employer concerns over current or former opioid use. The first document addresses legal employee use of codeine, oxycodone, and other opioid-based medications. It states that employers cannot automatically exclude workers from jobs due to their use of such medications. Employers must engage in a reasonable accommodation analysis to determine if the employees can be assisted in safely and effectively performing their job duties.

The second document provides guidance to employees who have used such medication in the past, including those who have completed rehabilitation or other therapy. It covers accommodation obligations for people dealing with opioid addiction treatment, as well as discrimination against individuals with a history of such use.

The EEOC says that, excluding Department of Transportation and other regulated positions, employers cannot automatically exclude a worker from jobs due to safety concerns because that worker legally uses pain medication. The company must perform an individual analysis to determine the specific medical circumstances (i.e., dosage, duration of use, probability of harm) and whether they present a threat of injury to the employee or others. The employer cannot simply exclude the person from the position due to a machine manufacturer’s warnings or cautions provided by the drug company.