The U.S. Equal Employment Opportunity Commission issued technical assistance earlier this month regarding the use of codeine, oxycodone and other opioids by employees and how they could stay employed.
The guidance was designed to “address concerns about the employment provisions of the Americans with Disabilities Act and the opioid epidemic,” the EEOC said in a news release.
While addressed to health care workers and employees, the guidance provides helpful information to businesses regarding a variety of rights and obligations regarding opioid use and the workplace.
The guidance acknowledges that an employee can be terminated based on illegal use of opioids, even if the employee has no performance or safety problems.
However, if a worker is using opioids legally, the employer cannot “automatically disqualify” the person because without first considering if there is a way for the employee to perform the job safely and effectively, unless the employee is otherwise disqualified due to a federal law.
The guidance acknowledges that “an employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.”
Employees should ask for a reasonable accommodation before problems occur because, as the guidance suggests, employers do not have to excuse poor job performance even if caused by a medical condition or treatment for a medical condition.
An employer that believes a worker cannot perform the job safely due to legal use of opioids will need to have objective evidence that the employee cannot do the job or that the employee poses a significant safety risk, even with a reasonable accommodation.
The company can ask that the employee undergo a medical evaluation to make the determination of whether the worker poses a safety risk.
Thus, a company that is aware of an employee’s opioid use - and believes that the use could impact the safe and effective job performance - should engage in an interactive process and provide reasonable accommodations that could eliminate or adequately reduce the risk if the employee asks for an accommodation.
In an accompanying guidance for health care workers, the EEOC explains the type and form of medical information that will be useful to employers that request documentation regarding an employee’s accommodation request or fitness for duty.
The guidance is a helpful roadmap for employers that are seeking documentation in response to an employee’s request for reasonable accommodation due to any medical condition, not just opioid use.
Documentation from a health care provider should include:
- the professional qualifications of the person completing the medical documentation, and the nature and length of the relationship with the patient;
- the nature of the patient’s medical condition;
- the patient’s functional limitations in the absence of treatment;
- the need for a reasonable accommodation, including how the patient’s medical condition makes changes at work necessary; and
- suggested accommodations.
The guidance directly addresses how to document the employee’s ability to work with heavy machinery. It is not enough to provide restrictions such as “no operating heavy machinery.” The health care provider needs to provide enough information so the company can determine if the worker’s legal use of opioids creates a “direct threat” to the workplace.
“Employers need information that will help them assess the level of risk posed by a disability, taking into account the probability that harm will occur, the imminence of the potential harm, the duration of the risk, and the severity of the potential harm,” the EEOC said.
The EEOC suggests that health care providers “describe relevant medical events or behaviors that could occur on the job (such as a loss of consciousness or nausea), and state the probability that they will occur.”
The information should provide estimates based on the most current available medical information “and should take into account the treatment regimen and medical history of the individual being evaluated.”
The provider also should describe any safety precautions that would reduce the chances that the medical event or behavior will occur.
The guidance can be found at EEOC.gov.
Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at email@example.com.