The Department of Justice issued a guidance for employers on how to deal with opioid use disorder (OUD) under the Americans with Disabilities Act. But the guidance raises almost as many questions as it answers, says Fiona W. Ong, an attorney with the law firm of Shawe Rosenthal.

DOJ says drug addiction is considered a disability under the ADA only as long as the individual is not currently using illegal drugs. The ADA regulations exclude the “illegal use of drugs 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.”

Ong notes, “The DOJ, as well as the Equal Employment Opportunity Commission, are taking a more aggressive approach to the definition. Thus, the DOJ states that, although those engaged in the current illegal use of drugs are not protected by the ADA, those in treatment or recovery from OUD are (subject to ADA protections).”

Employers may conduct drug testing for opioids. However, an employee who tests positive because they are taking legally prescribed opioids may not be fired or denied employment unless they cannot do the job safely and effectively or they are disqualified under another federal law, such as Department of Transportation regulations.

Employees taking legally prescribed opioids may be entitled to a reasonable accommodation if the condition causing the pain requires treatment with opioids, Ong points out.

“Such accommodation could include allowing the use of opioid medications, although as noted above, such use cannot prevent the safe and effective performance of the job or violate some other law. But even in that case, employers may need to consider transferring the employee to an open position that would permit such use, if no other reasonable accommodation is available.”