Blanket drug policies and methadone questions can get employers into trouble
A blanket policy against drug use might sound like a simple way to keep abuse out of the workplace, but doing it the wrong way can land a company in trouble.
A concrete and construction company recently learned about the problems these policies can cause when its practice of refusing to hire applicants who used methadone brought a lawsuit from the Equal Employment Opportunity Commission (EEOC).
Prohibiting methadone raises issues
Methadone is an opioid and can be abused, but it can also be used as a treatment for opioid addiction. A drug policy that fails to take those differences into account, and always treats methadone use the same way, opens the door to a disability discrimination claim.
The issue with the company’s policy was brought to light when a job applicant applied for a laborer position and the hiring manager asked him about medications he was taking. The applicant said he was taking methadone, and the hiring manager said the company would not hire him due to its policy prohibiting employment of people who took the drug.
The applicant then checked with the company’s head of HR who confirmed that this was the company’s policy.
No methadone = disability discrimination
The EEOC charged the company with violating federal law because a policy of barring applicants who used methadone violates the Americans with Disabilities Act (ADA).
Employers covered by the ADA cannot impose unlawful barriers to a job for people with disabilities, the agency noted, and this includes workers with records of opioid addiction who are taking methadone or other medication as part of their recovery.
In addition, the timing of the employer’s question about methadone use was problematic. The applicant was at the stage of applying for a job and had not yet been offered a position.
Before a job offer is made, the ADA does not allow employers to ask job applicants for information that may reveal the existence, nature, or severity of a disability. This includes questions about medication.
Even after a job offer is extended, a question like this must be carefully considered. Employers cannot have a job qualification standard that tends to screen out workers with disabilities (such as requiring applicants not to use methadone) unless it is job-related for the position and is also consistent with business necessity.
Treating methadone use the right way
When applicants ask about a job, questions about medications such as methadone should not be part of the conversation. The ADA prohibits employers from asking about prescription medications until after an offer of employment is made. While it’s fine to ask about medications or give a drug test after offering an applicant a job, it’s also risky at that stage to have a policy of turning an applicant away because of methadone use or a positive drug test for methadone.
Instead, the employer should give the applicant an opportunity to provide information about lawful medication use. An employer never needs to accommodate the illegal use of drugs, but an employee taking a lawfully prescribed medication should not be automatically disqualified from a job.
If there are concerns that the employee’s legal opioid use or treatment for opioid addiction would interfere with safe and effective job performance, an employer should consider whether there is a reasonable accommodation that resolves the concerns. The employee can check with their healthcare provider for risks the medication poses in light of job duties, and the employee and employer can discuss possible accommodations.
Moving too quickly to dismiss an employee using prescription medication, and skipping this step, risks a discrimination claim.
Key to remember: An employee legally using prescribed medication, including methadone, has ADA protections. Employers should not automatically disqualify an applicant because of methadone use.
