DOJ's Opioid Guidance Clarifies Disability Discrimination Topics

Topics

DOJ Guidance Points

OUD as a disability

People with OUD typically have a disability because they have a drug addiction that substantially limits a major life activity, such as caring for oneself, learning, concentrating, thinking, communicating, working, or the operation of major bodily functions, including neurological and brain functions.

The ADA also protects individuals who are in recovery but who would be limited in a major life activity in the absence of treatment or services to support recovery.

Legally prescribed medications

Under the ADA, an individual’s use of prescribed medication, such as that used to treat OUD, is not an illegal use of drugs if the individual uses the medication under the supervision of a licensed health care professional.

Participation in drug treatment programs

Individuals whose OUD is a disability and who are participating in a supervised rehabilitation or drug treatment program are protected by the ADA if they are not currently engaging in the illegal use of drugs. It is illegal to discriminate against these individuals based on their treatment for OUD.

Illegal use of opioids

Generally, the ADA does not protect people who are currently illegally using opioids, meaning that the illegal use of drugs 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.

Individuals with a history of past opioid use disorder

The ADA protects individuals with a “record of” disability, and individuals would fall into this category if they have a history of OUD. For example, if an employer terminates an employee based on his disclosure that he completed treatment for a previous addiction to prescription opioids, the employer may be in violation of the ADA for discriminating against the employee based on his record of OUD.

“Regarded as” coverage

The ADA provides legal protections for individuals who are regarded as having OUD, even if they don’t in fact have OUD. For example, if an employer mistakenly believes that an employee has OUD simply because that employee uses opioids legally prescribed by her physician to treat pain associated with an injury, the ADA would prohibit the employer from firing the employee based on this mistaken belief

Associational discrimination

The ADA protects individuals from discrimination based on their known association or relationship with an individual who has a disability, such as a friend, coworker, or family member.

Drug policies and drug testing

Employers may adopt or administer reasonable policies or procedures, including drug testing. However, individuals who test positive for an opioid and can show that the medication is being taken as prescribed and a licensed health care professional is supervising its use may not be denied, or fired from, a job for legal use of medication, unless they cannot do the job safely and effectively.