It has been a longstanding pillar in the law that under the Americans with Disabilities Act of 1990 (ADA) the statue protects alcoholism if it qualifies as a “disability.” Despite this statutory protection (if it is deemed one qualifies as such under the ADA), courts have consistently held that employers can have legitimate work rules that prohibit alcohol use in the workforce.
However, the line between having a protected disability and engaging in unprotected misconduct while working is not always clear. This issue is not always clear to employers about how to handle this issue for its employees. The distinction is important because protected alcoholics may be entitled to reasonable accommodations under the ADA and state laws. An employer cannot automatically take adverse action against its employee simply because the employee has a substance abuse issue.
Two recent federal district court decisions address both issues. In Lankford v. Reladyne, LLC, an Ohio district court considered a plaintiff’s claim that the employer unlawfully terminated the employee upon his return to work from a medical leave for alcohol rehabilitation. A few months later, the Northern District of Mississippi in Clark v. Boyd Tunica, Inc. dismissed a former employee’s claim that her employer unlawfully terminated her for being at work while under the influence of alcohol. Both cases touch on the competing issues confronting most employers today—the obligation to accommodate disabled alcoholic workers and the right to enforce policies that prohibit alcohol use while at work.
Alcoholism in workplaces presents many legal and human resource management issues. It is crucial for an employer to follow the federal and state discrimination and leave laws to not only prevent litigation but also for protecting employees and ensuring a safe environment for all employees. Employers do have a duty under the ADA to employees. The National Council on Alcohol and Drug Dependence defines alcoholism as: a primary, chronic disease with genetic, psychological, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterized by impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortion in thinking, most notably denial. According to the Council, 17.6 million people, or one in every 12 adults, suffer from alcohol abuse or dependence.
Under the ADA, individuals who abuse alcohol may be considered disabled if the person is an alcoholic or a recovering alcoholic. Indeed, alcoholism can result in the fairly obvious impairment of major life activities such as walking, standing, and thinking. Case law is clear on this as well. The Federal Circuit Court of Appeals has noted that it is well-established that alcoholism meets the definition of a disability under the ADA. In addition, the U.S. Court of Appeals for the Eighth Circuit has held that where a plaintiff could show she was regarded as an alcoholic, she was disabled within the meaning of the ADA. Some courts, however, have called into question whether alcoholism should categorically be a covered disability. Specifically: The Fifth Circuit concluded that alcoholism is not a disability per se, finding that the plaintiff’s alcoholism was not a covered disability under the ADA because it did not substantially limit any of his major life activities.
Nevertheless, when does an employer have a duty to accommodate an employee with alcoholism? Under the ADA, an employer must engage in the interactive process when an employee asks for an accommodation or when the employer becomes aware of its necessity to assist an employee. The issue of when the employer becomes aware of the necessity for an accommodation raises an interesting question. Can (or should) an employer ask applicants about their drinking habits? According to the Equal Employment Opportunity Commission (EEOC) says it depends on whether the particular question is likely to elicit information about alcoholism, which is a disability. An employer may certainly ask an applicant whether s/he drinks alcohol because that does not reveal whether someone has alcoholism. However, questions asking how much alcohol an applicant drinks are likely to elicit information about whether the applicant has alcoholism. Therefore, an employer should be wary of making such inquiries and should consult with counsel regarding the circumstances where such inquiries might potentially be appropriate.
There is still a more detailed duty to engage in an interactive process to reasonably accommodate employees with covered disabilities. This can include a modified work schedule so the employee can attend Alcoholics Anonymous meetings or a leave of absence so the employee can seek treatment provided the desired accommodation would not cause unreasonable hardship to the employer. The many side effects of alcoholism may also require reasonable accommodation. For example, depression, a common disability accompanying alcoholism, may necessitate transfer of the employee to a less stressful position if one is available and the employee is qualified.
However, an employer is generally not required to provide leave to an employee suffering from alcoholism to seek treatment if the treatment would likely be futile. Moreover, an employer does not have a duty to provide an accommodation to an employee who denies having a disability and has not requested an accommodation. The FMLA may also apply to grant leave to an aggrieved employee depending upon the situation.
Employers can implement rules in the workplace to govern substance abuse. Employers can help prohibit their employees from being under the influence of alcohol at the workplace. Employers can hold an employee who is an alcoholic to the same standards for employment or job performance and behavior as it does other employees, even if any unsatisfactory performance or behavior is related to the employee’s alcoholism. Undoubtedly, alcoholism adversely affects employers and their businesses just as it affects those who suffer from it. Threats to safety at work, job injuries, theft, low employee morale, and costs related to absenteeism, recruiting, training, turnover, and healthcare utilization all contribute to the detrimental effects of employees who cannot control their drinking.
Employers should try to establish a policy against alcohol use in the workplace addressing when alcohol consumption is permitted or prohibited and highlighting the availability of rehabilitation services and your employee assistance program. Also, refer to your workplace drug and alcohol policy and employee assistance program. Educate supervisors and managers about the signs of use and abuse and steps for reporting any suspicious behavior. Such training is important for those who will determine whether an employee will be tested based on the reasonable suspicion of abuse. Employers can consider assisting an employee suffering from alcoholism instead of terminating them from employment.