Article

Methadone, Buprenorphine, and Opioid Treatment at Work: Your ADA Rights

Can you be fired or turned down for a job because you take methadone or buprenorphine, use prescribed opioids for pain, or are in recovery from opioid addiction? How the ADA treats lawful use, recovery, drug tests, accommodations, and safety concerns.

8 min read

Lawful Use and Recovery Are Treated Differently From Current Illegal Use

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. Under 42 U.S.C. Section 12114(a), an employee or applicant who is currently engaging in the illegal use of drugs is not protected when the employer acts on the basis of that use. The same section says that exclusion does not reach someone who has completed or is participating in a supervised rehabilitation program, or has otherwise been rehabilitated successfully, and is no longer using drugs illegally, or someone who is wrongly regarded as using drugs illegally. Under 29 CFR 1630.3(a)(2), illegal use of drugs does not include a drug taken under the supervision of a licensed health care professional.

Medication for Opioid Use Disorder Is Legal Use

The EEOC's 2020 technical assistance document for employees who use opioids says that opioids include buprenorphine and methadone prescribed to treat opioid addiction in a Medication Assisted Treatment program. It explains that if you take the medication as directed in that program, you have a valid prescription and your use is legal. According to the EEOC, you cannot be denied a job or fired because you are in a treatment program unless you cannot do the job safely and effectively, or another federal law disqualifies you. The same document says an employer cannot automatically disqualify someone for legal opioid use without considering whether the person can do the job safely and effectively.

Opioid Use Disorder and Pain Conditions Can Be Disabilities

The EEOC says opioid use disorder is a diagnosable medical condition that can be an ADA disability, although an employer may deny an accommodation to someone who is currently using opioids illegally. If you take prescribed opioids for pain, the EEOC explains that you may qualify for an accommodation when the condition causing the pain is a disability, and that a condition does not need to be permanent or stop you from working to qualify. It also notes that you may qualify if the medication itself interferes with everyday functioning. Under 29 CFR 1630.2(k), a record of a past impairment that substantially limited a major life activity is also covered, and the EEOC says you can receive accommodations you need because of a disability you had in the past, such as schedule changes for support meetings or therapy that help prevent relapse.

Positive Drug Tests From Prescribed Medication

Under 42 U.S.C. Section 12114(d), a test to determine the illegal use of drugs is not a medical examination, and the ADA neither encourages nor prohibits that testing. The EEOC says an employer should give anyone subject to drug testing a chance to provide information about lawful drug use that may cause a result showing opioids, for example by asking everyone who tests positive for an explanation. Under 29 CFR 1630.16(c)(3), medical information learned from a drug test, other than information about illegal drug use, must be kept confidential under the ADA's medical records rules. Section 12114(b) also allows reasonable policies, including drug testing, designed to confirm that a person in or after a rehabilitation program is no longer using drugs illegally.

What Employers Can Still Require

Under 42 U.S.C. Section 12114(c) and 29 CFR 1630.16(b), an employer may prohibit illegal drug use and alcohol at the workplace, may require that employees not be under the influence of alcohol or be engaging in illegal drug use at work, and may hold an employee who illegally uses drugs or who has alcoholism to the same performance and conduct standards as other employees, even when the problem is related to that use. The EEOC adds that an employer never has to lower production or performance standards, eliminate essential functions, pay for work not performed, or excuse illegal drug use on the job as an accommodation. Under 29 CFR 1630.15(e), it may also be a defense that another federal law or regulation requires the action, such as Department of Transportation rules for safety-sensitive jobs.

Safety Concerns Require Objective Evidence

The EEOC says that if you are not using opioids illegally and are not disqualified by federal law, an employer that believes you cannot work safely must have objective evidence that you cannot do the job or pose a significant safety risk, even with a reasonable accommodation, and cannot remove you because of remote or speculative risks. Under 29 CFR 1630.2(r), a direct threat is a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation, based on an individualized assessment of your present ability to safely perform the essential functions of the job, using reasonable medical judgment and the most current medical knowledge or best available objective evidence. The factors include the duration of the risk, the nature and severity of the potential harm, its likelihood, and its imminence. The EEOC notes an employer might ask for a medical evaluation to gather that evidence.

Accommodations That Can Help

A reasonable accommodation is a change in the way things are normally done at work. The EEOC gives examples for workers who use opioids lawfully or are in recovery: a different break or work schedule, such as scheduling work around treatment; a change in shift assignment; or a temporary transfer to another position. If you need leave for treatment or recovery because of an ADA disability, the EEOC says you should be allowed to use sick and accrued leave like anyone else unless you are using opioids illegally, and that unpaid leave may be a reasonable accommodation when you need time off because of a disability, are not using drugs illegally, and are expected to be able to do your job again. If you can no longer do your regular job, you may ask for reassignment to an available vacant job you can do. Under 42 U.S.C. Section 12112(b)(5), an employer must make reasonable accommodations for the known limitations of a qualified employee or applicant with a disability unless it would cause undue hardship, which 42 U.S.C. Section 12111(10) defines as significant difficulty or expense.

How to Ask and What Documentation Can Be Required

The EEOC says to ask a supervisor, HR manager, or other appropriate person for a change at work because of a medical condition. You do not need a specific accommodation in mind, and a doctor or counselor may ask for you. An employer cannot deny an accommodation only because you did not follow its internal procedures, but following them may speed the process. Your employer may ask you to put the request in writing and may ask for a letter from a health care provider showing that you have a disability and why you need the accommodation. The EEOC publishes a separate guide for health care providers on helping current and former patients who have used opioids stay employed. Because an employer does not have to excuse poor performance, the EEOC notes it is generally better to ask before problems occur or become worse.

Family and Medical Leave for Treatment

The EEOC notes that you may also have rights under the Family and Medical Leave Act, which the Department of Labor enforces. Under 29 CFR 825.110, eligibility generally requires working for a covered employer for at least 12 months, at least 1,250 hours in the 12 months before leave begins, and at a worksite with 50 or more employees within 75 miles. Under 29 CFR 825.119, FMLA leave may be taken for substance-use treatment by a health care provider or by a provider on referral from one, but absence because of the use itself, rather than treatment, does not qualify. An employer may not act against you for taking FMLA leave for treatment, although an established substance-use policy that is applied without discrimination and was communicated to all employees can still allow termination in the circumstances it describes. State and local laws may give additional protection.

Retaliation and Deadlines

Under 42 U.S.C. Section 12203, it is unlawful to retaliate against someone who opposed disability discrimination or took part in an ADA charge or investigation, or to interfere with someone exercising ADA rights. The EEOC says your employer cannot legally fire you, or refuse to hire or promote you, simply because you asked for a reasonable accommodation or because you need one. A charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination; federal employees generally must contact an agency EEO counselor within 45 days. Keep copies of accommodation requests and replies, prescription and program documentation you provided, drug test notices and results, performance reviews before and after your employer learned of your treatment, and any written warnings. Write down dates and names while they are fresh.

When to Get a Free Consult

Consider a free consult if a job offer was withdrawn after a drug test showed a prescribed medication and you were not given a chance to explain or your explanation was ignored, you were fired or refused a job because you take methadone or buprenorphine without any individualized look at your ability to work safely, you were refused schedule changes or leave for treatment, your treatment information was shared with coworkers, or you were disciplined soon after asking for an accommodation. A lawyer can review whether your employer is covered, whether a federal safety rule applies, how the deadlines apply, and what evidence to preserve. YesLawyer offers a free consult, and there is no fee unless we win.

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