Dive Brief:

• Workers undergoing methadone, Suboxone or similar addiction treatments are protected from discrimination by the Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission reminded employers Nov. 16, announcing a lawsuit alleging such bias.
• The commission said it sued an Indiana-based transportation company for refusing to hire an applicant because of her Suboxone treatment for opioid addiction (EEOC v. Professional Transportation, Inc., No. 1:20-cv-00745 (S.D. W.Va.)). After making a conditional offer for a job as a driver, Professional Transportation, Inc. (PTI) told the candidate she would have to pass a pre-employment drug test. Before the test, the woman explained that she was receiving Suboxone treatment. "In response, a PTI human resources official looked up public information on possible safety related side effects of Suboxone. Based on its research and without considering whether the applicant actually experienced any side effects from Suboxone, PTI withdrew its job offer," EEOC said, adding that the plaintiff did not experience side effects from Suboxone.
• PTI’s decision to withdraw the job offer based on prescribed medical treatment was illegal employment discrimination and violated the ADA, the EEOC alleged. "Our nation’s opioid addiction crisis has left many workers under medication-assisted treatments like Suboxone and methadone," said EEOC Regional Attorney Debra Lawrence in a statement; "Employers must respect the ADA rights of such workers by not basing employment decisions on unfounded assumptions about safety risks. The EEOC will continue to protect the rights of workers recovering from opioid addiction." Jamie Williamson of EEOC’s Philadelphia District office added, "We will continue to vigorously enforce the ADA to prevent employers from making discriminatory employment decisions like this, based on stereotypes, myths and fears rather than accurate assessments of a person’s abilities to safely perform the job."

Dive Insight:

While current illegal drug use is not protected by federal law, the ADA prohibits discrimination against individuals recovering from addiction to illegal drugs, among others. It also places strict limits on employers' ability to ask job applicants to answer medical questions, take a medical exam or identify a disability such as addiction, the EEOC has said. An employer generally may test for illegal drug use at the post-offer stage if it does so consistently, but medically prescribed treatments like Suboxone and methadone and any possible side effects of those treatments must be assessed on an individualized basis, according to the commission.

Drug abuse reportedly is a widespread problem in the workplace. A 2018 report suggested that 60% of employers in the U.S. have been affected by at least one instance of opioid abuse in their workforce. And it's estimated that opioid abuse costs employers billions in lost productivity.

In dealing with recruitment and retention issues stemming from drug use, employers have adopted solutions such as seeking out employees with criminal records who are required to refrain from drug use as a condition of their parole or offering drug treatment to applicants who fail an initial screen.

Training for supervisors, managers and those involved in hiring is key to preventing discrimination, as is the development of workplace policies and procedures that prepare for such situations, experts have said. Part of that training can include a look at methods to ensure that decisions and actions aren't based on biases.