What do you do when you learn that an employee is a recovering opioid addict? What don’t you do?

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Image Credit: Wikipedia (https://en.wikipedia.org/wiki/File:Trileptal_tablets.jpg) CC BY-SA 3.0, Link

During this July 4th holiday week, I don’t expect many of you to read this blog. So, thank you to those who do stick around. And, come mid-week, I’ll set off some legal backyard fireworks in your honor.

***Updates shopping list***

And I’ll bring my A-game. B-plus, at least. For the rest of the week, you can expect nothing less from me than Russia’s performance against Spain in the World Cup.

We’re going to start off by revisiting an issue, the surface of which we began to scratch a few months ago: opioids and the workplace.

Last Friday, the U.S. Equal Employment Opportunity Commission announced here that it was suing an employer for violating the Americans with Disabilities Act when it allegedly fired an employee because it regarded him as having a disability due to his drug treatment for opioid addiction.

“Regarded him as having a disability, Eric. What’s that?”

An individual may not have an actual disability, but if an employer perceives that person as having one, then the company violates the ADA if it discriminates against that individual because of that perceived disability. The classic example I use is when a company forces an employee with a nasty facial scar to work in the storeroom, rather than a customer-facing position. The scar isn’t a disability. It doesn’t substantially limit one or more major life activities. But, the employer treats the employee’s scar as a disability.

Got it? Let’s get back to the lawsuit.

The EEOC lawsuit.

So, we have the EEOC claiming that an employer fired someone shortly after it learned that he was in treatment/recovery from an opioid addiction.

According to the EEOC, the employee’s pre-employment drug screen came back positive. Indeed, the EEOC acknowledges that the employee “had been in a treatment program for over a year taking a dose of prescribed methadone at night after the work day, and he was gainfully employed in a similar painter position.”

The EEOC further alleges that employee worked the rest of the week following his positive drug screen. Then, upon learning that the prescription medication caused the positive drug-test result, he provided medical information to clear him to work. What followed, the EEOC claims, was HR going all “my-way-or-the-highway” on the employee:

  • HR would not permit the employee to return to work unless his doctor completed a specific form and returned it to the company
  • The employee’s doctor did not complete and return the specific form
  • The employee returned another doctor-completed form, which invited the company to contact the clinic’s offices if it needed more detailed information
  • The human resources representative declared, “I’m not calling nobody”
  • The employee then offered to submit himself to a complete physical performed by a company-selected doctor
  • The company fired the employee

So, where did the employer allegedly go wrong?

Let’s hear from the EEOC:

“Opioid addiction is a disability that is affecting millions across the United States, yet many are regaining control over their lives by participating in supervised rehabilitation programs,” said EEOC Houston District Director Rayford O. Irvin. “When a worker has a record of such a disability and is performing his job proficiently, an employer cannot lawfully preclude the worker from employment because he is receiving treatment for his addiction.”

(If the individual were currently addicted to opioids and using them without a prescription, the employer could have terminated his employment. The ADA does not protect current, illegal drug use.)

How else did this employer allegedly violate the ADA? More from the press release:

Houston District Office Regional Attorney Rudy Sustaita said, “Enforcement of the ADA is a top priority of this agency. When an employer regards a worker’s impairment as preventing him from doing the job, but refuses to consult with the worker’s treating doctor and assess the worker’s ability to work, the company should expect that the EEOC will enforce the ADA and defend the employee’s rights.”

Employers cannot stereotype employees with disabilities. Additionally, a closed-minded approach is a bad look — especially in front of a jury. So, when an employee — maybe one of yours — agrees to have a company-selected doctor evaluate him or her to determine if he or she can perform the essential functions of the job with or without an accommodation, that’s an offer that you should accept.

Or don’t and as the blockquote above indicates, be prepared to accept the consequences.

“Doing What’s Right – Not Just What’s Legal”