We made a conditional offer of employment to an applicant subject to a pre-employment drug test. His test came back positive for Suboxone. He has provided a copy of a prescription and a note from a doctor that states he is under the doctor’s care and taking Suboxone for treatment of a drug addiction. Are there any risks to withdrawing our job offer?
Yes. An employer faces significant risks if it withdraws a conditional job offer because the applicant has tested positive for Suboxone in a pre-employment drug test.
Suboxone is one of a class of drugs prescribed by health care providers that treats opioid use disorder (OUD). Suboxone helps to control cravings and maintain recovery. It is a rehabilitation tool for treatment of OUD, just like in-patient treatment.
Protected Disability?
OUD may be a protected disability. OUD involves the use of illegal opioids, like heroin, or of prescription opioids, like morphine or codeine.
For more information about OUD, see Opioid Use Disorder, a publication of the Civil Rights Division of the U.S. Department of Justice.
Both California’s Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA) prohibit discrimination because of a disability and require employers to provide reasonable accommodations to qualified individuals with disabilities unless it causes an undue hardship.
FEHA broadly defines disability as “a condition or impairment” that “limits a major life activity.” The ADA requires that there be a substantial limitation of a major life activity. California employers should apply the broader definition.
Drug addiction is considered a physical or mental impairment under FEHA and the ADA and is recognized as a disability because it limits one or more major life activities, such as caring for oneself, concentrating, communicating, and working. OUD also affects the operation of neurological and brain functions.
Discrimination Protection
People taking prescribed medication to treat OUD are protected from discrimination by FEHA and the ADA
In 2022, the Equal Employment Opportunity Commission issued a guidance describing an employer’s obligations under the ADA regarding job applicants or employees who legally use opioid medications or who have a history of addiction to opioids.
See The ADA and Opioid Use Disorder: Combating Discrimination Against People in Treatment or Recovery.
The ADA guidance makes clear that it is illegal to discriminate against people who have gone through or are going through drug rehabilitation. Taking Suboxone or a similar drug legally prescribed by a doctor to treat OUD is not considered to be current illegal drug use when it is taken as directed.
This means that FEHA and the ADA protect individuals using Suboxone as part of their treatment for OUD. An employer who refuses to hire someone because his pre-employment drug screen shows only the presence of Suboxone is discriminating against the applicant in violation of FEHA and the ADA.
Illegal Drug Use
FEHA and the ADA do not protect individuals who are currently using drugs illegally.
The guidance also clarifies that employers can refuse to hire and discipline employees based on their illegal use of drugs. If drugs other than Suboxone are present on the drug screen, the employer may be able to withdraw the job offer.
Like the facts presented in the question, however, an individual’s use of prescribed medication to treat OUD is not an “illegal use of drugs” if the individual uses the medication under the supervision of a licensed health care professional. This means that withdrawal of a job offer solely on the basis of Suboxone use would violate the FEHA and the ADA.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
