Today’s blog entry discusses the recent guidance from the CDC on consideration for wearing masks updated on August 7, 2020. It also discusses two different recent guidances from the EEOC on opioids. My thanks to Eric Meyer for pointing out the CDC guidance. He has an entry on it in his blog, here. The CDC guidance can be found here. Links to the EEOC guidances can be found here. With respect to the categories that this blog entry is divided into, what I will do is explore each of the guidances and then have a separate section immediately after each guidance discussing my thought takeaways on that particular guidance. So, the blog entry is best read in consecutive pairs. Of course, the reader is free to read all of the blog entry if they so desire or any part of it.

 

I

CDC Mask Guidance

 

Let’s turn to the CDC guidance unmasks first. Understanding what CDC is thinking about mask is critical because that very much informs whether a direct threat per the ADA is involved with respect to an individual that doesn’t wear it. At the very beginning of the document, the CDC lays out key bullet points and they are:

 

  • CDC recommends that people wear masks in public settings and when around people who don’t live in your household, especially when other social distancing measures are difficult to maintain.
  • Masks may help prevent people who have COVID-19 from spreading the virus to others.
  • Masks are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings.
  • Masks should NOT be worn by children under the age of 2 or anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
  • Masks with exhalation valves or vents should NOT be worn to help prevent the person wearing the mask from spreading COVID-19 to others (source control).

Other salient points of the guidance include:

  1. Masks help prevent a person who is sick from spreading the virus to others. It helps keep respiratory droplets from reaching other people.
  2. People who should not be wearing mask include: children younger than two; anyone who has trouble breathing; and anyone who is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
  3. People should not wear a mask while engaged in activities causing the mask to become wet, like when swimming at the beach or a pool. When swimming, it is particularly important to maintain physical distancing from others when in the water.
  4. People engaged in high intensity activities, like running, may not be able to wear a mask if it causes difficulty breathing. If wearing a mask is not possible, focus on outdoor activity and maintaining physical distancing.
  5. Masks are a critical preventive measure and are most essential in times when social distancing is difficult. If masks cannot be used, be sure to take other measures, such as social distancing, frequent handwashing, and cleaning and disinfecting frequently touched surfaces.
  6. Masks with one-way valves or vents allowing air to be exhaled through a hole in the material can result in expelled respiratory droplets that can reach others. Accordingly, CDC is not recommending using masks with an exhalation valve or a vent.
  7. Regarding face shields:

A face shield is primarily used for eye protection for the person wearing it. At this time, it is not known what level of protection a face shield provides to people nearby from the spray of respiratory droplets from the wearer. There is currently not enough evidence to support the effectiveness of face shields for source control. Therefore, CDC does not currently recommend use of face shields as a substitute for masks.

However, wearing a mask may not be feasible in every situation for some people for example, people who are deaf or hard of hearing—or those who care for or interact with a person who is hearing impaired. Here are some considerations for individuals who must wear a face shield instead of a mas

  1. Although evidence on face shields is limited, the available data suggest that the following face shields may provide better source control than others
    1. Face shields that wrap around the sides of the wearer’s face and extend below the chin.
    2. Hooded face shields.
  2. Face shield wearers should wash their hands before and after removing the face shield and avoid touching their eyes, nose and mouth when removing it.
  3. Disposable face shields should only be worn for a single use and disposed of according to manufacturer instructions.
  4. Reusable face shields should be cleaned and disinfected after each use according to manufacturer instructions or by following CDC face shield cleaning instructions.
  5. Plastic face shields for newborns and infants are NOT recommended.

 

  1. With respect to the deaf and hard of hearing or with respect to a person caring for interacting with the person who is “hearing impaired,” those individuals may be unable to wear mask if they rely on lip reading to communicate. In that situation, the CDC recommends a clear mask. If a clear mask isn’t available, consider whether you can use written communication, closed captioning, or decrease the background noise to make communication possible while wearing a mask that blocks your lips.

II

Thoughts/Takeaways on the CDC Mask Guidance

 

  1. CDC is saying that a failure to wear a mask means that you are a direct threat to others if social distancing is not possible. As such, any entity subject to the ADA will have to do everything short of the direct threat situation to accommodate that individual.
  2. CDC is not currently recommending the use of face shields as a substitute for masks because there is currently not enough evidence to support the effectiveness of face shields for source control. That said, they shields that wrap around the sides of the wearer’s face and extend below the chin as well as hooded face shields may provide better source controls than other kinds of face shields.
  3. Whenever the guidance refers to people who are deaf or hard of hearing, a part of me goes absolutely batty for a couple of different reasons. First, a person who is deaf or hard of hearing has no problem wearing a mask absent some other kind of medical consideration. The problem is trying understand others who are wearing a mask if they are lip readers, which includes myself. Second, CDC uses the term, “hearing impaired.” In the hearing loss community, that term as a general rule drives people absolutely insane. There is nothing impaired about my hearing. I am without hearing aids someone who has a severe to profound hearing but that doesn’t make me impaired. Third, the CDC guideline doesn’t mention Deaf at all, rather it just refers to deaf. There is a world of difference between a culturally deaf individual, Deaf, and a deaf individual. A culturally deaf individual is someone who uses ASL, is medically deaf (severe to profound hearing loss), and went to a state school for the deaf. A bonus exists if you are genetically deaf. With respect to deaf, lowercase, that just means you have a severe to profound hearing loss. There is also a split among the Deaf community between ASL first and the oral deaf, who may or may not know ASL. Fourth, for the culturally deaf, written communications may not work at all. Fifth, closed captioning will work for the deaf and hard of hearing communities, but not necessarily for the culturally deaf community. Sixth, I fail to understand how it is practically possible to reduce most background noise. Finally, even hearing people have their comprehension reduced by masks that are not clear. In the speech range sounds, masks, according to my audiologist, reduce the sound by 7-12 db. Considering every three DB of sound is double the amount of sound, that is a tremendous amount of sound being reduced. If you have clear masks that meet CDC guidelines, why not use that as a default. Also, even for the culturally deaf, a clear mask is advantageous because they can see the lips and the face to help give context to the signs.

 

III

EEOC Guidance on the Use of Codeine, Oxycodone, and Other Opioids: Information for Employees

 

  1. The key to remember is that the title I of the ADA has an exception for using drugs illegally. So, if you are not using drugs illegally, you still may be protected under the ADA if you are using opioids.
  2. If you are in a MAT program for opioid addiction that requires you to take opioid medication, then under the ADA you cannot be denied a job or fired from a job because you are in such a program unless you cannot do the job safely and effectively or you are disqualified under another federal law.
  3. An employer should give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. They can do that by asking before the test is administered whether the person takes medication that could cause a positive result or ask all people testing positive for an explanation.
  4. If you have recovered from an opioid addiction but still need a reasonable accommodation to help avoid relapse, you can get that.
  5. If there is a dispute between the employer and the employee regarding whether the employee can do the job safely, the employer must have objective evidence that the employee cannot do the job or poses a significant safety risk even with a reasonable accommodation. Those risks cannot be remote or speculative. The employer would have the right to ask the employee to undergo a medical evaluation.

IV

Thoughts/Takeaways on The EEOC Guidance On The Use Of Codeine, Oxycodone, And Other Opioids: Information For Employees

 

  1. For those who are practitioners of the ADA in the labor and employment field, there isn’t anything new in this guideline. I would have preferred if the EEOC specifically use the term direct threat rather than terms indicating the same without using the words. “Direct threat,” is a term of art and is a high standard to meet.

 

V

EEOC Guidance on How Healthcare Providers Can Help Current and Former Patients Who Have Use Opioid Stay Employed

 

  1. People with a history of opioid use or misuse may have the right under the ADA to get reasonable accommodations helping them to stay employed and in treatment.
  2. Where a patient is taking a prescription opioid to treat pain from a medical condition, the underlying medical condition likely qualifies as an ADA disability thereby giving them the right to seek reasonable accommodations.
  3. Opioid use disorder is a diagnosable medical condition likely to qualify as an ADA disability.
  4. The ADA contains an exception for people using heroin for opioid medication without a valid prescription. The ADA does not prohibit an employer from taking adverse action based upon the current illegal use of drugs.
  5. A patient with a past addiction to opioids can get a reasonable accommodation if he or she needs one because of the past addiction.
  6. When a medical professional is documenting the need for an accommodation, things the medical professional want to cover include: 1) the professional’s qualifications and the nature and length of his or her relationship with the patient; 2) the nature of the patient’s medical condition; 3) the patient’s functional limitations in the absence of treatment. That is, describing the extent the condition limits a major life activity; 4) the need for reasonable accommodations. That is, explaining how the patient’s medical condition make changes at work necessary; and 5) suggesting accommodations if the medical professional is aware of an effective accommodation.
  7. Safety concerns only justify a suspension of duties or other adverse action if the risk rises to the level of a direct threat.
  8. To decide if an employee poses a direct threat, employers need information to help them assess the level of risk posed by the disability. Things to consider include: 1) the probability the harm will occur; 2) the imminence of the potential harm; 3) the duration of the risk, and 4) the severity of the potential harm.

 

  1. In describing safety risk, any estimate of such safety risk have to be based upon the most current available medical information and should also take into account the treatment regimen and medical history of the individual being evaluated.

VI

Thoughts/Takeaways on the EEOC Guidance on How Healthcare Providers Can Help Current and Former Patients Who Have Use Opioid Stay Employed

 

  1. It is really helpful how the EEOC uses the term “direct threat,” in this publication and then also explains what it means. I wish they had done the same in their use of codeine, oxycodone, and other opioids guidance.
  2. The ADA exception applies to the current illegal use of drugs. That is an important distinction to keep in mind where people are using medications with a valid prescription. As we discussed here, current use of illegal drugs can get very complicated.
  3. Opioid use disorder is likely to qualify as an ADA disability according to the EEOC.
  4. I expect the EEOC laying out how a medical professional to deal with writing up a support for reasonable accommodation will be very helpful to medical professionals. The employer’s can make the employee’s medical professional’s job easier by giving that person a list of what are the essential functions of his or her job.
  5. “Direct threat,” is a term of art that we have discussed many times before, such as here. It is not a low standard.
  6. Always need to do an individualized analysis.
  7. Don’t forget about doing the interactive process right, which we discussed here.

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