The Sophisticated Employer Blog

On April 5, the Civil Rights Division of the U.S. Department of Justice (DOJ) issued official guidance on how the Americans with Disabilities Act (ADA) can protect individuals with Opioid Use Disorder (OUD) from discrimination. 

The guidance also includes examples to help individuals and employers navigate difficult scenarios involving opioid and other substance use disorders. 

The ADA provides civil rights protections to individuals with disabilities and guarantees that they have the same opportunities to enjoy employment opportunities, participate in state and local government programs, and purchase goods and services.  The ADA accomplishes this by prohibiting discrimination on the basis of disability, which is defined as (1) a physical or mental impairment that substantially limits one or more major life activities, including major bodily functions; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 

The DOJ’s guidance recognizes that individuals with OUD typically have a disability because they have a drug addiction that substantially limits one or more of their major life activities, and drug addiction is considered a physical or mental impairment under the ADA. The ADA’s protection extends to individuals who are in recovery, as well as those who have a history of OUD but no longer use drugs illegally. Additionally, the ADA protects individuals who are regarded as having an opioid use disorder, whether or not they actually do, and individuals who have a known association or relationship with an individual with a disability based on OUD. 

However, the main exception to the ADA in this context is it does not provide legal protection to individuals who are engaged in current illegal drug use when an entity takes action against them because of that illegal drug use. Current illegal use of drugs means illegal drugs use 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 drug use does not include taking a medication under the supervision of a licensed health care professional.

It is always advisable to consult your employment attorney before taking action on situations involving the ADA and/or OUD in the workplace.