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On Wednesday, August 5th, the Equal Employment Opportunity Commission (EEOC) issued guidance documents that indicated that people who lawfully use opioids and those who have recovered from an opioid addiction are protected from workplace bias under the Americans with Disabilities Act. The EEOC made clear that the illegal use of opioids, such as oxycodone and codeine, isn’t covered under the Act, but those in recovery or those receiving medication-assisted treatment are protected.

If a business has a drug testing program, employers should give any worker or applicant subject to the test a chance to give an explanation either before the test or after about lawful drug usage that results or might result in a positive test, according to the EEOC. In addition, the EEOC said that workers who have opioid prescriptions to treat pain may qualify for an accommodation if the condition qualifies as a disability under the statute, noting that conditions like depression or PTSD may qualify.

The EEOC noted that the medical condition does not need to be permanent or force the person to entirely stop working to fit within the law's bounds. Additionally, workers can also receive a medical accommodation to help them avoid relapsing into opioid addiction, with the EEOC noting in its guidance that job modifications like altered schedules to attend addiction meetings can be given because of a disability that a worker "had in the past."

Opioid use and abuse is of particular concern to the construction industry.  In 2019, unions representing construction workers in Chicago filed a lawsuit against dozens of drug companies, claiming the drug companies aggressively marketed and increased reliance on opioids, leading to overdoses and fatalities.

If you have questions about how this development might impact your workplace, please contact Johnson & Bell Shareholders, Joseph F. Spitzzeri, Joseph B. Carini, III, Katie E. Gorrie, Genevieve M. LeFevour, Christopher J. Carlos or Brian C. Langs.