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Does the ADA Prohibit Discrimination in New Jersey on the Basis of Opioid Addiction? The EEOC Weighs In.

Both the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) protect workers against discrimination on the basis of disability. The definition of “disability” has changed over the years to encompass a wide range of conditions. The public’s understanding of addiction has begun to take psychological factors into account. This has led to questions about whether addiction may qualify as a disability under the ADA or the NJLAD. The Equal Employment Opportunity Commission (EEOC) recently reviewed the law surrounding disability discrimination as it relates to opioid use and addiction. If you feel you have been discriminated against for use of opioids, it would be prudent to discuss the matter with a New Jersey employment discrimination attorney to learn what rights you have under state and federal law.

What Do Federal and State Disability Discrimination Laws in New Jersey Say About Opioids?

Opioid addiction is a serious problem in New Jersey and throughout the U.S. The definitions of “disability” in both the ADA and the NJLAD leave open the possibility that some forms of addiction could be considered disabilities. See 42 U.S.C. § 12102(1), N.J. Rev. Stat. § 10:5-5(q). The ADA makes a specific exception, however, for individuals who are “currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a).

Opioids and Disability Discrimination

The EEOC’s guidance document delves into the language of the ADA and the regulations implementing the law. It notes that the document does not have “the force and effect of law,” but rather represents its own interpretation of the ADA. It divides the analysis into three questions, the answers to which could lead to a viable claim for disability discrimination.

1. Is the Use of Opioids Illegal Under Federal or State Law?

An adverse employment decision based on illegal drug use is unlikely to be protected by state or federal antidiscrimination laws. This is stated explicitly in the ADA, and is considered public policy in many jurisdictions.

The EEOC mentions medication-assisted treatment (MAT) for addiction, such as the use of methadone, as an example of legal opioid use. This, the EEOC says, is covered by the ADA, so an employer should not fire an employee in an MAT program, except for the reasons described below.

2. Does Legal Opioid Use Affect Job Performance?

Even if an employee’s use of opioids is legal and covered by the ADA, an employer may still be able to take certain adverse actions without violating the law. Employers must provide reasonable accommodations for employees with disabilities, unless doing so would pose an “undue hardship” for the employer. 42 U.S.C. § 12112(b)(5), N.J.A.C. § 13:13-2.5.

The ADA may not apply, however, if an employee “pose[s] a direct threat to the health or safety of other individuals in the workplace.” 42 U.S.C. § 12113(b). If legal opioid use interferes with a worker’s ability to do their job safely, and a reasonable accommodation is not possible, the full protection of the ADA may not be available.

3. Do Other Laws Prohibit Opioid Use in a Particular Job?

Finally, the EEOC notes that other statutes may require employers to exclude individuals who use certain drugs, regardless of whether their use is legal and related to a medical condition. It does not provide any specific examples, but laws relating to transportation safety, law enforcement, and national security often have provisions regarding drug use.

The experienced and knowledgeable disability discrimination attorneys at the Resnick Law Group practice in New Jersey and New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to discuss your rights and options with a member of our team.

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