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A Drink a Day...Keeps the ADA Away?

Blog Post created by 1068289 on May 15, 2017

From Guest Contributor Jenny Sweet, Attorney at Soule Employment Law Firm, Service Provider for CAI's Pre-Paid Legal Services Plan

 

Sometimes employers come to me with the misconception that alcoholics, self-identified or not, have no workplace protections and that their choice to continue to drink negates most, if not all, of their employee rights. On the other side of the spectrum, other employers believe their hands are tied when an employee is abusing alcohol and that the person must be handled with kid gloves so as not to run afoul of any discrimination rules. As with most things in HR land, we must toe the fine line between coddling and clobbering employees.

 

When analyzing an employee with alcohol issues and determining a best course of action, employers need to remember that although “qualified” alcoholics (employees that can perform the essential functions of the job with or without accommodation) can meet the ADA's definition of disability, employers may still hold them to the same standards of performance and behavior as their sober counterparts. Let’s look at a few scenarios and recent case law to see when alcohol issues are, or are not, covered by the ADA, and then when those issues require accommodation.

 

Scenario 1) We have an employee who admitted to HR that he is an alcoholic while out one night at our staff bonding activity (which was ironically a booze cruise on Lake Wallenpaupack) [10 bonus points if you get this reference]. Under the ADA, should we allow him time off work during the week to attend Alcoholics Anonymous meetings?

 

Yes, this is an ADA poster child reasonable accommodation to provide to an employee, if the few hours out of the office will still allow him to perform the essential functions of his job and do not create an undue hardship on your organization.

 

Scenario 2) One of our employees is a recovering alcoholic, but relapsed, got a DUI, and is now incarcerated because of it. Does the ADA require us to accommodate him with the time off work while he is in jail?

 

This scenario recently played out in the US District Court for the Western District of Washington in McElwain v. The Boeing Company. Even though McElwain argued that his conduct (a DUI and incarceration) resulted because of his alcoholism, his self-professed disability, the Court noted that there is a distinction between disability-caused misconduct and the disability itself. So, even though McElwain’s incarceration may be related to his alcoholism, his employer was not required to arrange for his continued attendance, or employment, at their facility [since his time out of work in jail violated company policies].

 

Scenario 3) One of our longtime employees has been caught repeatedly drinking vodka out of a water cup at her desk. She is an otherwise amazing employee and the customers love her. In lieu of termination, we want to offer her a Last Chance Agreement and refer her to our Employee Assistance Program with the request that she attend alcohol counseling and treatment as a condition of keeping her job. The treatments are twice weekly from 6:00 PM-9:00 PM for four weeks, and she has to pay for part of the cost. Our questions are a) can we request this in lieu of termination under the ADA and then b) does the ADA (or FLSA) require us to compensate the employee for the time she spends in this counseling and treatment?

 

The ADA does not require employers to provide rehabilitation or offer it in lieu of discipline or termination, nor does it require employers to offer “last chance” agreements as a reasonable accommodation. Employers may decide if they will make and enforce policies regarding last chance agreements and rehabilitation or treatment options for employees with drug or alcohol issues.

 

Regardless, these counseling sessions are not “work” under the FLSA, and are not compensable, especially as they do not benefit the employer, but instead, the employee. Also, the Portal to Portal Act (an amendment to the FLSA), as noted in Gibbs v. City of New York, does not require employers to pay for postliminary activities that are not either the principal activity the employer hired the employee to perform or integral or indispensable to the principal activity the employer hired the employee to perform (here, the employee attending a counseling session after work is not the principal activity of her employment nor is it related).

 

Overall, the ADA’s main takeaway on this issue is that employers may hold alcohol users to the same standards as other employees and may enforce their alcohol policies, along with proper discipline for misconduct related to alcohol use. However, as an employee’s alcoholism may qualify as a disability, be prepared to engage in the interactive process and to offer any reasonable accommodations that may empower your employee to be successful in their career and in battling their addiction.

 

If your organization has questions about alcohol or your ADA compliance, please feel free to reach out to your Advice and Resolution team at CAI or peruse myCAI for excellent articles, documentation, and training materials like the following: https://my.capital.org/docs/DOC-1786 and https://my.capital.org/docs/DOC-4783. For more reading on this particular subject, check out this excellent blog post from Littler.

 

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Legal Disclaimer: Jenny Sweet is licensed in the state of North Carolina. This article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.

 

Image courtesy of http://www.ac24.cz via Creative Commons License.

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