1. MANAGING OPIOID ADDICTION IN THE WORKPLACE Valerie C. Samuels, Esquire Posternak Blankstein & Lund LLP Prudential Tower 800 Boylston Street Boston, MA 02199 (617) 973-6248 vsamuels@pbl.com

2. Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Employer must have 15 or more employees. 2

3. ADAAA clarifies key words and phrases in the definition of disability. The term “disability” means an individual: 3 Who has a physical or mental impairment that substantially limits one or more major life activities; or Who has a record of such an impairment; or Is regarded as having such an impairment-even if s/he does not, in fact, have such an impairment (actual or perceived). Also covered are individuals who are discriminated against due to their association with a person with a disability.

4.  Handicap defined:  a physical or mental impairment which substantially limits one or more major life activities; or  a record of having such impairment; or  is regarded by employer as having a qualifying impairment.  Impairments include: caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working. 4

5.  Is employee capable of performing “essential” job functions?  “Essential functions” is broadly interpreted by MA courts: includes routine tasks and those necessary on an emergency or occasional basis  Under ADA, marginal job duties not included as essential job functions. Only consider fundamental job duties. 5

6.  The current illegal use of a controlled substance, or the non-dependent use of alcohol are not impairments.  Alcoholism may be a disability if it substantially limits a major life function.  Prior drug use/addiction may also be a disability.  Employees may be disciplined for poor performance, or use of illegal drugs or alcohol in the workplace. 6

7. ADA and Chapter 151B require reasonable accommodation in all aspects of employment: 7 1.To ensure equal opportunity in the application process; 2.To enable a qualified individual with a disability to perform the essential functions of a job; 3.To enable an employee with a disability to enjoy equal benefits and privileges of employment.

8.  Awareness of an issue at work.  Policies must comply with ADA, c. 151B, FMLA, etc.  Make sure job descriptions are accurate, current, and complete.  Engage in “Interactive Process” ASAP!  Undue hardship analysis.  Direct threat analysis. i.e., Does employee drive for worker operate dangerous machinery? 8

9.  Not obligated to observe an employee for any behavior that may be disability related, and then decide the employee is disabled.  Employee’s request (No Magic Words) is the First Step in the interactive process between the individual and employer.  Can be made by others (family member, friend) by other employee observation.  Request does not need to be in writing. 9

10.  Policies & Procedures  Make sure to include a process to monitor how accommodations are working and how leave interacts with FMLA, sick leave law, workers’ compensation.  Individual must let employer know that an adjustment or change is needed for a medical condition.  Employer is not required to assume disability.  Make sure employee’s medical provider is aware of essential job functions when getting accommodation request. 10

11. Qualifications/Performance must be:  job related  consistent with business necessity  qualification standards that are:  truly reflected in what is expected  performed in the actual workplace  based on essential job functions only (not marginal functions) Conduct Standards:  unacceptable workplace conduct may be subject to discipline. 11

12.  The employer must show that an accommodation is an undue hardship.  must consider whether there is an alternative that would not impose an undue hardship.  Employer must determine undue hardship on a case by case basis:  consider the undue hardship in relation to the size of the employer,  the resources available, and  the nature of the operation.  The employer should consider the effect of tax incentives on the cost of an accommodation before making an undue hardship determination.  Assessment of undue hardship is an ongoing process as resources and situations change. 12

13.  Disability insurance benefits may apply.  Employers may require employees to provide limited medical documentation to substantiate the need for an accommodation.  Medical information obtained must be treated as confidential and kept in a separate employee file, i.e., not the employee’s personnel file. 13

14.  State unequivocally that the company complies with the ADA and Chapter 151B.  Accommodation process:  Who is responsible for what (job candidates, employee, supervisors, HR, etc.).  Communicate the process in an Employee Handbook  Do training.  Have accurate job descriptions.  Respond promptly to requests.  Monitor effectiveness of the accommodation given.  If accommodation is rejected have an appeal process.  Refer employee to Employee Assistance program.  Document the process at each step! 14

15.  Do not diagnose employees or second guess medical information.  Do not make credibility assessments, prejudge, or assign motive.  Do not pry into employees’ medical or personal lives. 15

16.  MCAD www.mass.gov/mcad  MCAD Guidance on Persons With Disabilities in the Workplace www.mass.gov/mcad/resoures/employers- business/emp-guidelines-handicap-gen.html  EEOC www.eeoc.gov/laws/types/disability.cfm  EEOC Guidance on Reasonable Accommodation www.eeoc.gov/policy/docs/accommodation.html  EEOC Guidance on Applying Performance and Conduct Standards to Employees With Disabilities www.eeoc.gov/facts/performance-conduct.html  EEOC Guidance on Unlawful Disparate Treatment of Caregivers www.eeoc.gov/policy/docs/caregiving.html 16

17. 17 Contact Information Valerie C. Samuels, Esquire Posternak Blankstein & Lund LLP Prudential Tower 800 Boylston Street Boston, MA 02199 (617) 973-6248 vsamuels@pbl.com www.pbl.com