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Monday, December 12, 2011

Is Alcoholism A Protected Disability Under The Americans With Disabilities Act (ADA)?

Consider the following scenario:  An employee who is an alcoholic returns from his lunch break during which he drank several beers.  His supervisor notices that the worker is glassy-eyed, slurring his speech, and smells of alcohol.  The supervisor fires him for violating the company's "zero tolerance" alcohol policy.  Does the worker have a claim for disability discrimination under the ADA?  On these facts, probably not.

The Americans With Disabilities Act (ADA) is a federal law that prohibits discrimination against employees with disabilities.  It applies to employers with at least 15 full-time employees.  The ADA not only protects employees who are disabled or have a "record" of being disabled, it also protects employees who are "regarded as" disabled by their employer as well as employees who are "known to have a relationship or association" with another person who is disabled.

The term "disability" has a specific meaning under the ADA.  Under the ADA, "disability" means (i) "a physical or mental impairment that substantially limits one or more major life activities"; (ii) "a record of such impairment"; or (iii) "being regarded as having such an impairment."  See 42 U.S.C. s. 12101.  Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, speaking, breathing, learning, reading, thinking, communicating, and working.  The statute further defines "major life activities" to include the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Note:  Employees who are "regarded as" disabled by their employers do not have to prove that they in fact have an impairment or that they are substantially limited in their major life activities or that their employer believes they are substantially limited in their major life activities.  It is sufficient  that their employer believes, even mistakenly, that they have a disabling condition.  See 42 U.S.C. s. 12102(3).

The first question is whether an employee who is an alcoholic has a "disability" within the meaning of the ADA?

Courts generally agree that an employee suffering from alcohlism has "a physical or mental impairment."  They do not always agree, however, that such an employee's major life activities are substantially limited by his condition.  This requires proof, usually supplied by the plaintiff, that meets the statutory requirements.  That is, the plaintiff must show that his disability (alcoholism) substantially limits one or more of his major life activities.  Nevertheless, in most cases, the court will find, or the employer will concede, that an alcoholic employee has a "disability" within the meaning of the ADA.

The second question is whether an alcoholic employee is qualified to perform the essential functions of the position?

Importantly, only "qualified" employees are protected by the ADA. See 42 U.S.C. s. 12112(a) (prohibiting discrimination "against a qualified individual on the basis of disability").  Many ADA lawsuits based on alcoholism lose in court because the plaintiff cannot prove that he was qualified to perform the essential functions of his position.  The essential functions of a position are the fundamental duties and responsibilities of the job, as defined and judged by the employer.  Significantly, attendance and punctuality are essential functions of most positions.  If an alcoholic employee cannot meet these requirements, he may not been deemed "qualified" for the position; hence, he may not be protected under the ADA.

The third question is whether an employer is required to "reasonably accomodate" an alcoholic employee?

It depends.  An employer is not required to accommodate an employee's intoxication or the adverse effects of excessive alcohol use.  For example, even if an employee has the disability of alcoholism, the employer is not required to allow the employee to arrive late to work due to the effects of a hangover.  On the other hand, the employer may be required to accommodate the employee's efforts to obtain treatment for the alcoholism.  As an EEOC guidance memorandum explains:

Example: An employer has warned an employee several times about her tardiness. The next time the employee is tardy, the employer issues her a written warning stating one more late arrival will result in termination. The employee tells the employer that she is an alcoholic, her late arrivals are due to drinking on the previous night, and she recognizes that she needs treatment. The employer does not have to rescind the written warning and does not have to grant an accommodation that supports the employee’s drinking, such as a modified work schedule that allows her to arrive late in the morning due to the effects of drinking on the previous night. However, absent undue hardship, the employer must grant the employee’s request to take leave for the next month to enter a rehabilitation program.              

The final question is whether an employer can discipline an alcoholic employee for poor performance or workplace misconduct caused by or related to his drinking?

Yes.  The ADA expressly provides that an employer "may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee."  In other words, there is no "alcoholism" excuse for poor performance or workplace misconduct.  Employees who drink on the job or who are drunk on the job or who fail to perform their duties due to drinking or who engage in misconduct due to drinking may be subject to appropriate discipline, up to and including termination.  The only caveat is that the employer must treat alcoholic and non-alcoholic employees the same, and may not impose different penalties for the same offenses depending on whether or not the employee is an alcoholic.  That is, the employer may not single out alcoholics for worse discipline than their non-alcoholic co-workers.  As the EEOC explains:

The ADA specifically provides that employers may require an employee who is an alcoholic or who engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees.  This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.

Example: A federal police officer is involved in an accident on agency property for which he is charged with driving under the influence of alcohol (DUI). Approximately one month later, the employee receives a termination notice stating that his conduct makes it inappropriate for him to continue in his job. The employee states that this incident made him realize he is an alcoholic and that he is obtaining treatment, and he seeks to remain in his job. The employer may proceed with the termination.

Example: An employer has a lax attitude about employees arriving at work on time. One day a supervisor sees an employee he knows to be a recovered alcoholic come in late. Although the employee’s tardiness is no worse than other workers and there is no evidence to suggest the tardiness is related to drinking, the supervisor believes such conduct may signal that the employee is drinking again. Thus, the employer reprimands the employee for being tardy. The supervisor’s actions violate the ADA because the employer is holding an employee with a disability to a higher standard than similarly situated workers.  

In sum, alcoholism probably is a "disability" under the ADA, and employers may be required to accommodate an alcoholic employee's reasonable efforts at treatment and rehabilitiation (for example, by providing a flexible work schedule so the employee can attend Alcoholics Anonymous meetings).  But this does not mean that an alcoholic employee is excused from meeting the employer's required performance and conduct standards.  Any violations of these standards, even if caused by or related to the employee's drinking (for example, an on-the-job accident caused by being drunk), may result in the employee being disciplined, up to and including termination.

An interesting case involving the issue of alcoholism recently was decided by Judge Raymond J. Dearie of the U.S. District Court for the Eastern District of New York.  Darcy v. City of New York, No. 06-CV-2246, 2011 WL 841375 (E.D.N.Y. Mar. 8, 2011) (link here).  In Darcy, the plaintiff was a New York City police officer who claimed that he was transferred to a less prestigious assignment because his superiors believed he was an alcoholic, which he denied, based on his friendship with another police officer who was an alcoholic.  He asserted a "regarded as" claim and an "association" claim under the ADA.  The court explained that the "regarded as" claim required the plaintiff to prove that he was perceived by his employer to be an alcoholic; it did not require him to prove that the employer's belief was correct or that the employer believed he was substantially limited in any major life activities.  With respect to the "association" claim, the court explained that the plaintiff was required to prove that the employer knew he had a relative or associate with a disability and took an adverse action against him because of that relationship.  In Darcy, the district court denied the City's motion for summary judgment on both claims.  However, the court's decision was based on its retroactive application of the 2009 amendments to the ADA (which broadened the law), which subsequently were held not to apply retroactively.  Accordingly, the City has filed another motion for summary judgment, which was pending at the time of this post.     

For further discussion about alcoholism and the ADA, see here.    

     

 

      


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