The Equal Employment Opportunity Commission recently issued new guidance documents on the rights of employees who are legally using opioids, and for their health care providers.

Although aimed at employees and health care providers, the documents provide a nice road map for employers who have employees using any type of over-the-counter or prescription medication legally.*

Because the same principles apply to all use of legal drugs*, I'm going to replace "opioids" with "legal drugs"* in this summary of the EEOC's guidance.

Principle 1: If an applicant or employee is using drugs illegally, then under federal law the employer can reject or terminate the individual based on that reason alone.*

Principle 2: An individual is not automatically disqualified from employment because he or she is taking legal medications that might affect his or her ability to "safely or effectively" perform the job.

Principle 3: An individual is not automatically disqualified from employment because he or she is currently using legal drugs (such as methadone) as part of a rehabilitation process.

Principle 4: If a drug test result comes back positive for opioids or other legal derivatives of illegal drugs, then the employer should request an explanation before taking action against the individual. Better yet, the Medical Review Officer or laboratory should request that information before the drug test takes place.

Principle 5: There will be times when even a legal drug can interfere with an individual's safe or effective performance of the job. If the drug is legal, then the employer should consider reasonable accommodation.

                                                                                                                  

WORK AND PLAY: What TV shows can teach us about employment law

What do TV shows, including NCIS, Insane Pools Off the Deep End, and Gilmore Girls, have to teach us about employment law and HR?

Tune in to Constangy's podcast Work and Play, and hear all about it from hosts Susan Bassford Wilson and Cherie Silberman. You'll also find out which TV series wins the coveted "Labor and Employment Emmy Award." (No spoilers!)

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And now, we return you to our regularly scheduled blog post. 

                                                                                                                         

Principle 6: Unless the employer already knows about the individual's legal use of the drug, the individual is responsible for informing the employer about the need for reasonable accommodation.

Principle 7: Straight from the EEOC to employers' ears: "[A]n employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation."

Principle 8: Addiction to legal medications may have to be accommodated by the employer (for example, allowing the employee to go to rehab or group therapy), but only if the employee is using the medications legally.*

Principle 9: Reasonable accommodation should also be considered by the employer if the employee needs it to avoid a relapse.

Principle 10: Needless to say, if the employee has an underlying medical condition that creates the need for the medication (examples given by the EEOC are post-traumatic stress disorder or depression), then the employer would have to try to accommodate those conditions, too, provided that the employee needed accommodation and the employer was aware of the need.

Principle 11: Employees needing reasonable accommodation should do their best to follow the employer's procedures for requesting accommodation. But employees are not disqualified from receiving reasonable accommodations just because they don't follow procedures.  

Principle 12: If the employee can't perform the job now but might be able to do so in the future (with or without reasonable accommodations), then the employer would have to consider holding the job for the employee while allowing the employee to take leave under the Family and Medical Leave Act or under the employer's own policies.

Kudos to the EEOC! My hat is off to the EEOC for providing separate guidance for health care providers, who may not be as aware of the ins and outs of workplace accommodations and may not know the type of information that employers need.

**********WHAT'S WITH ALL THE ASTERISKS IN THIS POST? As we have reported many times before, medical marijuana is still illegal under federal law, which means it would not violate federal law for the employer to take action against an applicant or employee who is a current user. However, taking such action could violate applicable state law, as many employers are learning the hard way.

Image Credits: Pills 1 from Adobe Stock. All other images from flickr, Creative Commons license. Pills 2 by Robson, TV dinner by adrigu, Pills 3 by nursingschoolsnearme.com.