ADA Guidance On Opioid Use Disorder And Other Substance Use Disorders

Volume: 21 | Issue: 23
May 5, 2022

The U.S. Department of Justice (DOJ) has issued a guidance on how the Americans with Disabilities Act (ADA) applies to people in recovery from opioid use disorder (OUD) and other substance use disorders.

The ADA does not cover an employee or applicant who is currently using illegal drugs. But an individual in treatment or recovery from a substance abuse disorder may be covered by the ADA. The DOJ explains that people with OUD have a disability because they have a drug addiction that substantially limits one or more of their major life activities. Drug addiction is considered a physical or mental impairment under the ADA. As such, an employee or applicant in recovery, or someone who was addicted to opioids in the past, would be covered from discrimination under the ADA.

The DOJ further provides that an individual taking legally prescribed medication to treat for OUD or another substance abuse disorder is protected by the ADA as long as the individual is not engaged in the illegal use of drugs. This explanation is consistent with the EEOC’s position on the use of certain opioids, such as buprenorphine and methadone, to treat opioid addiction in a Medication Assisted Treatment (MAT) program. The DOJ explains: “’Current illegal use of drugs’ means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem. Illegal use, however, does not include taking a medication, including an opioid or medication used to treat OUD, under the supervision of a licensed health care professional.”

The DOJ agrees that employers can “adopt or administer reasonable policies or procedures, including drug testing, designed to ensure that individuals are not engaging in the illegal use of drugs.” It cautions, however, that “some individuals who test positive for an opioid, . . . will be able to show that the medication is being taken as prescribed or administered and a licensed health care professional is supervising its use. These individuals may not be denied, or fired from, a job for this legal use of medication, unless they cannot do the job safely and effectively, or are disqualified under another federal law.”

The DOJ’s guidance and the EEOC’s Technical Assistance Document on drug addiction and treatment cover important principles employers need to understand when applying their substance abuse policies. As always, KZA attorneys are available to answer your questions and help you navigate this area which is both factually and legally complicated. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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