Opioid use and the workplace: How employers can get in trouble

As the opioid epidemic continues to take a grim toll, workplace issues relating to opioid use remain more likely to arise. For HR pros, missteps in handling these issues can result in hefty payouts.

Here is a case in point: A Tennessee county just resolved an allegation that it illegally discriminated against a correctional officer with an opioid use disorder by failing to make reasonable accommodations for him.

The county should have made accommodations that would have allowed the correctional officer to keep working while taking prescribed medication for his disorder, the Department of Justice (DOJ) alleged.

To settle the case, the county agreed to pay the officer $160,000 and take other steps to ensure compliance with the Americans with Disabilities Act (ADA).

The complaint in the case was filed together with a proposed consent decree that (though subject to court approval) is set to resolve the matter. In the complaint, the DOJ alleged that Cumberland County unlawfully denied the corrections officer’s request for accommodation and then constructively discharged him based on his disability.

Opioid use by corrections officer

The unnamed employee began working as a corrections officer at the Cumberland County jail early in 2015, earning a promotion to corporal about a year later.

He supervised about eight other officers in that role, and his performance reviews were always good.

According to the complaint, the county’s sheriff’s department had a policy that barred employees from having legally prescribed controlled substances or certain medications in their systems while working. Specifically, the policy prohibited employees from “possessing … or having controlled substances … or any other mind-altering or intoxicating substance present in their systems while at work or on duty,” the DOJ said in the suit.

It also had a policy requiring employees to tell a supervisor if they were legitimately taking medication that might affect their ability to work, the suit adds.

Soon after he started the job, the officer told his supervisor that he was taking medication for his opioid use disorder. But it was not until June of 2016 that he was required to undergo a drug test. The test showed he was using a prescribed medication called Bunavail, which he used to treat his opioid use disorder.

Placed on leave

The department then placed the officer on unpaid leave, telling him that he could not go back to work until he was “taken off [his] prescription” and passed another drug test.

The officer gave the county a letter from a medical provider explaining that he was legally using the drug as part of a recovery program. The county nonetheless insisted that he stop taking the drug if he wanted to work, the DOJ alleged.

The officer stopped taking the drug and went back to work in August of 2016. He passed a drug test in July of 2017. But he struggled without medication assisted treatment, and his physician told him he should begin using it again.

He took leave to start using a drug called Suboxone. He returned to work in January of 2018 and tested positive for that drug. He again told the county he was taking the drug as part of his treatment. At that point, a supervisor told him he could either resign or be terminated. The officer resigned at the start of February.

The DOJ suit says the county violated ADA by failing to engage in the interactive process of finding a reasonable accommodation. The county’s drug prohibition policy is a discriminatory qualification standard that illegally screens out or tends to screen out people with disabilities, it adds.

In the proposed consent decree, the county agreed to submit its policies regarding employees with disabilities to the DOJ for approval. It also agreed to conduct training regarding ADA requirements and submit reports to the DOJ relating to compliance with the decree’s terms. Finally, it agreed to pay the officer $160,000, including about $124,500 in back pay, almost $12,000 in interest on the back pay, and approximately $23,500 in compensatory damages.

Reviewing the rules

The ADA does not protect people who are currently using drugs illegally. This exclusion applies both to those who use drugs that are illegal and those who use legal prescription drugs in an illegal manner.

But it is very clear that the statute does protect those who are not currently using drugs illegally but are using them as part of an addiction treatment program.

Unless other federal law, such as Department of Transportation regulations, automatically disqualifies an employee for drug use, before summarily disqualifying employees based on lawful drug use, employers should examine whether they can safely and effectively do the job with or without reasonable accommodation.

The EEOC has issued guidance specifically addressing legal employment issues relating to opioid usage. The guidance confirms that employers are generally obligated under the ADA to seek to accommodate those who use opioids as part of a treatment program.