ADA and Alcoholism
Kymm
140 Posts
If we have an employee who has not quite been with us for a year (so no FMLA) but wants a leave of absence to go into rehab for alcoholism... should we grant the leave? (Wondering about ADA).
Comments
If he is not disabled, follow your company policy regarding LOA.
Your answer it to follow your policy. If you don't have one, then you may wish to craft one now, and, starting with this guy, agree to the program enrollment with regular screens after completion of the program. I can tell you from personal experience, there is nothing quite emotionally equal to attending one of these graduation ceremonies if you are ever lucky enough to be allowed into the secret room where it takes place.
James Sokolowski
HRhero.com
Perhaps the handbook is wrong.
I have been previously guided by attorneys twice, both who said alcoholics have protection of the ADA following a bona fide treatment program. I stand corrected if an attorney will comment with an appropriate reference.
If you do decide to set the precedent, be aware that you will need to repeat the practice for others similarly situated, including one who might announce that he hooked on cocaine or some other illegal drug and is wanting to enroll in a treatment plan/program. In the absence of policy, your precedent and practice will more-less rule.
So I posed the question to some of the attorneys who write our Employment Law Letters across the country. Out of the five attorney-editors who responded, all agreed that alcoholics are protected by the ADA regardless of recovery or treatment. However, you can hold alcoholics to the same standards as other employees.
:-? The ADA statute and regulations are very confusing when it comes to alcohol and drugs. They explicitly disqualify current drug users from ADA protection but don't say the same thing about alcoholics. (42 USC §12114 and 29 CFR § 1630.3) So the limitation on drug addicts doesn't apply to alcoholics. (See the regulations' "Appendix To Part 1630—Interpretive Guidance On Title I Of The Americans With Disabilities Act," Section 1630.16(b). Or the EEOC's ADA Title I Technical Assistance Manual, section 8.4.)
A big thank-you goes to attorney-editors [link:www.employerscounsel.net/bios/maemp.shtml|Susan Fentin] of Massachusetts, [link:www.employerscounsel.net/bios/oremp.shtml|Cal Keith] of Oregon, [link:www.employerscounsel.net/bios/moemp.shtml|John Vering] of Missouri, [link:www.employerscounsel.net/bios/mtemp.shtml|Jeanne Bender] of Montana, and [link:www.employerscounsel.net/bios/akemp.shtml|Helena Hall] of Alaska. xclap Since they did all the work already, I'll use it as an article in an upcoming issue of the HR Hero Line e-zine.
James Sokolowski
HRhero.com
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If there's anyone out there who hasn't left for the weekend yet, I hope you can help me figure out an ADA question that's bugged me for several years (really).
In order to be protected by the ADA, does an alcoholic have to be in recovery? (Assume that he otherwise fits the definition of "disability" and his drinking doesn't affect his work or violate company policies.)
I say he's protected, but I've found newsletter articles that seem to support either side. The issue has come up on our Employers Forum discussion board (again), and I'm hoping you can clear it up.
From my point of view, the ADA statute and regs clearly exempt drug addicts who are current users, but those sections don't mention alcoholics. But then the statutes and regs muddle the picture by lumping together alcohol and drugs when discussing substance abuse that interferes with the employee's work (which isn't the case in my hypothetical).
If you have any opinions about this, please reply to this listserv or to me individually at [email]jsokolowski@mleesmith.com[/email] or on the Forum at
[url]http://www.hrhero.com/employersforum/DCForumID14/5489.html[/url]
For what it's worth, below is some research I've compiled over the years.
Have a great weekend.
James Sokolowski
Web Editor
M. Lee Smith Publishers
(I omitted the research I sent to the attorneys, unless someone wants me to post it on the Forum.)
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Off the top of my head, I think an alcoholic can be protected, whether or not in recovery. Drug use presents a different issue given the exclusion for current illegal drug use. Cal.
Calvin L. Keith
Perkins Coie LLP
1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128
(503) 727-2006
(503) 727-2222 fax
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I agree with Cal.
John Vering
Armstrong Teasdale LLP
Kansas City, MO
800-243-5070 X5226
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I think that the employee's status as an alcoholic is protected, i.e. you cannot fire him for being an alcoholic, and he may be entitled to a reasonable accommodation in the nature of time off to attend AA meetings or counseling sessions, BUT you do not have to facilitate alcoholic behavior. He can be held to the same standards as everyone else, i.e. you can fire him for coming to work drunk or getting a DUI in the company car.
Jeanne Matthews Bender
Holland & Hart LLP
401 N. 31st St., Ste. 1500, Billings, MT 59101
406/252-2166
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To add to the confusion, even if an employer could make an employment decision based solely on an employee's status as an alcoholic not in recovery, it may violate state law. Alaska's supreme court has made it clear that disciplining/terminating an employee for non-work related conduct (so conduct that does not impact the person's job performance) violates the covenant of good faith and fair dealing.
Helena L. Hall
Perkins Coie LLP
1029 W. Third Ave., Ste. 300, Anchorage, AK 99501
907/279-8561
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Alcoholics are protected in that you cannot take action against an employee because she is an alcoholic. She would be entitled to reasonable accommodation in the form of a leave of absence to enter rehabilitation, but you do not need to tolerate misconduct.
We had a situation where the employee denied her alcoholism, and her work performance was not an issue, although the employer was concerned. We counseled the employer to focus on specific business based conduct (i.e., smell of alcohol on her breath impaired her relationship with her subordinates who worked closely with her; failure to be able to locate her not acceptable when she was needed in emergencies, etc.) We set up a performance improvement plan based on those issues and she self-destructed, eventually no-call no show for several days after which we terminated her.
So if the alcoholic is performing his/her job adequately, you really cannot take any action. But it is rare that there will be no impact whatsoever on the individual's job performance.
Susan G. Fentin, Esq.
Associate Editor,
Massachusetts Employment Law Letter
Skoler, Abbott & Presser, PC
Representing the Legal Interests of Employers for over Forty Years
One Monarch Place
Springfield, MA 01144
Phone 413.737.4753
Facsimile 413 787-1941
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Another message from Susan Fentin:
Alcoholism is definitely a disability and protected under federal law. Meaning you cannot discipline someone for being an alcoholic any more than you could discipline them for not being able to walk. You are, however, allowed to discipline any disabled individual for misconduct. The First Circuit has some nice language that says that a disability is not a license to flout company rules. I can't remember the case off the top of my head, but could probably retrieve it from a brief if anyone was interested.