Your Employee Tests Positive For Methadone — What To Do?

In light of the opioid crisis gripping Massachusetts, New England, and other parts of the country, employers are increasingly likely to discover that an applicant or employee has tested positive for methadone.

What Is Methadone?

Methadone is a narcotic that alleviates pain and reduces withdrawal symptoms in people addicted to heroin or other narcotic drugs without causing the “high” associated with drug addiction.  As such, methadone is used both as a pain killer and in drug addiction detoxification and maintenance programs.

Quandary For Employers

While employers do not have to tolerate illicit drug use, employers do have an obligation not to discriminate on the basis of an actual disability, a history of a disability, or a perceived disability – including the disability of drug addiction.

This raises the question:  Should methadone be viewed as signaling (a) illicit drug use justifying immediate termination of employment, or (b) a potential disability requiring reasonable accommodation?

EEOC Position

The Equal Employment Opportunity Commission (“EEOC”) views methadone as signaling a potential disability associated with pain or drug addiction.  Thus, when an applicant or employee tests positive, the agency requires an individualized assessment of whether the methadone use was authorized and, if so, whether a reasonable accommodation may be necessary.

If the methadone use was unauthorized, then this may constitute illicit drug use warranting termination of employment, as methadone itself is a powerful narcotic that may be obtained lawfully only by prescription.

Similarly, if the methadone use was authorized but causes a condition that may imperil the safety of the applicant/employee or others (e.g., drowsiness), then this may constitute an undue hardship to the employer justifying termination of employment.  Such a determination, however, should be based on the particular facts of the case and supported by medical records.

Enforcement Actions

A lawsuit brought by the EEOC against manufacturer Hussey Copper, Ltd. (the “Company”) is illustrative.  In this case, the Company offered an applicant a job as a production laborer, provided that he pass a physical examination.  During the examination, the applicant tested positive for methadone.

The applicant informed the Company’s doctor that he was receiving methadone as part of a clinically supervised chemical dependency program.  Upon request, the treatment program confirmed that the applicant was participating in the program, was compliant, and was not experiencing adverse side effects from the methadone treatments.

Nonetheless, the Company rescinded the job offer on the belief that the applicant posed a safety risk due to his methadone treatments.  The applicant, in turn, filed a charge with the EEOC, which sued the Company in federal district court

After a three-day trial, the Company acquiesced to a consent decree settling the case on the public record.  The consent decree required the Company, among other things, to pay the applicant $85,000 in monetary relief and hire him as a mason utility laborer.

Exceptions

Notably, under regulations of the Federal Highway Administration of the U.S. Department of Transportation (“DOT”), individuals who test positive for methadone cannot receive a commercial driver’s license (“CDL”).  This, in effect, prevents an employer from hiring or continuing to employ an individual who tests positive where the job requires a CDL.

And, of course, as is the case with any applicant or employee, an individual’s misconduct or failure to comply with other legal requirements may warrant revocation of a job offer or termination of employment notwithstanding any legal protections that the employee otherwise might have.  Such cases should be reviewed carefully.

Recommendations For Employers

In light of the emergence of opioid addiction as a leading public policy concern, and given the EEOC’s stout enforcement activity for the protection of individuals in opioid treatment programs, employers should consider the following steps:

• Ensure that all drug testing programs and related employment activity are fully compliant with applicable law;
• In the event of a positive test result, take appropriate measures to confirm whether the methadone use was authorized and, if so, whether it may bear on the individual’s ability to perform the essential functions of the job;
• Fully engage in the interactive process, as appropriate, to determine if a reasonable accommodation may be appropriate or if employment (or continued employment) may create an undue hardship for your business.
• Engage experienced employment counsel as early as possible to help ensure appropriate handling so as to reduce potential liability for your business.

Please contact us if you have questions about handling positive test results, drug testing in general, or other employment law matters.  We would be happy to help.