The Coronavirus pandemic is bad enough, but reports have surfaced about a resurgence in opioid use in the wake of widespread unemployment and traumatic isolation created by the lockdowns.
In recent years opioid abuse had begun to back off a bit, although substance abuse in general had remained high. With the lockdowns and idling of a large chunk of the workforce, reports from government experts and anecdotal evidence has been mounting for months about the psychological impact resulting in more suicides, spousal and child abuse, as well as rises in alcohol and drug use.
In mid-August, the Centers for Disease Control and Prevention (CDC) revealed the results of a survey conducted in late June that opens a window into just how serious the psychological and emotional impact of the Coronavirus pandemic is for Americans from all walks of life.
The survey shows that reports of anxiety disorder symptoms were about three times those reported in the second quarter of 2019 (25.5% versus 8.1%), and depressive disorder was about four times that reported in Q2 2019 (24.3% versus 6.5%). CDC also said 13.3% of respondents reported starting or increasing substance abuse (including drugs and alcohol).
In addition, more than twice as many respondents reported serious consideration of suicide in the previous 30 days than did adults in the U.S. in 2018, referring to the previous 12 months (10.7% versus 4.3%).
“To reduce potential harm of increased substance use related to COVID-19, resources, including social support, comprehensive treatment options and harm reduction services, are essential and should remain accessible,” the CDC researchers advised. “Periodic assessment of mental health, substance use and suicidal ideation should evaluate the prevalence of psychological distress over time.”
America has had a substance abuse problem for a major part of its history, but evidence shows COVID-19 is making it worse. In June. it was reported that alcohol sales had risen 27% since March 7.
Millennium Health, a national drug testing laboratory, also found worrisome trends when comparing the period this year before the national emergency was declared on March 13, to the period from then to the end of May. It found an increase of 32% for nonprescribed fentanyl, 20% for methamphetamine, 12.5% for heroin and 10% for cocaine, accompanied by an 18% increase in suspected drug overdoses.
Public health officials across the country are reporting spikes in drug overdose deaths during the COVID-19 pandemic, with more than 30 states reporting increases in opioid-involved overdose deaths, primarily related to illicit fentanyl.
“Combined with the impact COVID-19 has on patients with mental health and substance use disorders, additional resources may be needed to address resulting public health consequences, including the risk of drug overdose,” Millennium states.
EEOC Warns Employers
On Aug. 5, the Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents addressing substance abuse accommodation issues under the Americans with Disabilities Act (ADA) for employees who use opioid medications or are addicted to them.
The EEOC characterized the documents as “informal guidances” and said their stated purpose is to “provide clarity to the public regarding existing requirements under the law.” The commission admitted that the guidance documents do not have the force and effect of law or “bind the public in any way.”
However, attorneys Kathryn Russo and Catherine Cano of the Jackson Lewis law firm warn that “employers must ensure that they do not make employment decisions that are influenced by the social stigma around substance abuse and recovery.” The commission has had a long history of pursuing cases where employers made adverse employment decisions based on unsupported conclusions about an applicant’s or employee’s ability to perform a job due to a positive drug test result for opioids or for lawful use of opioids, they explain.
According to the commission, employees who have lawfully used prescribed opioids or who are in recovery from prior opioid use—but are not currently unlawfully using opioids—are generally protected under the ADA’s non-discrimination provisions.
These employees also may be eligible for reasonable accommodations if needed because of their lawful use of the medication or underlying medical conditions requiring its use. However, employees who are currently unlawfully using opioids are not protected under the ADA.
The ADA’s protections apply even if an employee is presently experiencing addiction to lawfully used opioids. The guidance further states that opioid addiction is itself a diagnosable medical condition that can be an ADA-covered disability and may require an employer to consider reasonable accommodation. This would include time away from work to attend therapy or support group sessions to avoid relapse or an extended leave of absence for treatment or recovery.
Employees seeking leave for treatment or recovery from opioid addiction also should be permitted to use sick and accrued leave the same as other employees requesting leave for medical treatment.
In addition, employees currently taking an opioid medication as directed in a Medication Assisted Treatment (MAT) program are deemed to be engaging in legal use. Under the ADA, employees cannot be denied or terminated from a job solely because they are in a MAT program unless they cannot do the job safely and effectively, or are disqualified under federal law.
With regard to drug testing, EEOC says an employer should give any employee subject to drug testing an opportunity to provide information about lawful drug use that may cause a result showing opioid use. An employer may ask whether the employee takes medication that could cause a positive result before or after the test.
When an employer believes that an employee’s opioid use or addiction treatment could interfere with the safe and effective performance of their job, the employer may be required to engage in an interactive process and provide reasonable accommodation if doing so would eliminate safety or performance concerns and would not cause an undue hardship on the employer.
That being said, the guidance notes that once an employer has alerted an employee about their concerns regarding the employee’s opioid use, it is the responsibility of the employee to ask for a reasonable accommodation if they want one.
The guidances also make clear that “an 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.”
None of the information contained in the latest guidances set forth new policy or changes to the EEOC’s prior interpretation of the law and are only intended to provide clarity to the public regarding existing requirements, note attorneys Evandro Gigante and Laura Fant of the Proskauer Rose law firm.
“Nevertheless, the documents provide useful guidelines for employers facing concerns about an employee due to their current or former opioid usage,” Gigante and Fant offer.
