ADA and Alcoholism

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

  • 12 Comments sorted by Votes Date Added
  • First thing you want to know is if he is truly disabled. You can require medical certification to that fact. If he is disabled you should start the interactive process to determine if a leave of absence is a reasonable accommodation. If it isn't, be sure you have a solid defense as to why (extra OT for someone to cover probably is not a good enough defense).

    If he is not disabled, follow your company policy regarding LOA.
  • Current abuse of alcohol or addiction is not an ADA defined disability. Only after an individual has participated in a certified program of treatment does the individual have (probably) ADA protections.

    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.
  • Actually, the ADA does protect alcoholics who are still drinking. It's just drug addicts who lose ADA protection while they're using.

    James Sokolowski
    HRhero.com
  • Quoting from an ADA handbook, "While federal law does not protect alcoholics, or current users of illegal drugs, some state laws do protect these individuals as disabled."

    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.
  • I would recommend granting the leave. If his problem is such that inpatient treatment is recommended it would probably fall under the ADA as far as the leave being a reasonable accomodation.
  • Although it is certainly up to the employer and is the benevolent thing to do, I would be cautious about setting the precedent, ar at least give it serious thought. ADA does not come into play until the program is completed, not before the person has enrolled in the program.

    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.
  • This is also posted in the FMLA section. In that post they state that the ee previously told the supervisor that he is an alcoholic and has had previous treatment. That information makes me think that further investigation is warranted.
  • Our drug free workplace policy says terminate, unless the employee comes forth (before being caught) and voluntarily identifies as an abuser, seeks counseling and rehabilitation, agrees to be periodically tested, and will have his counselors keep us informed of his progress. If you have a drug free workplace follow it, if not,I would develop a last chance agreement and give him a leave of absence for treatment. If you have an EAP refer him, I find that sometimes in-patient treatment is not necessary and out-patient treatment can be provided after work hours.
  • Alcoholism and the ADA has really bugged me for years because I've seen so much conflicting information. This discussion brought up the biggest controversy for me -- whether the ADA protects an alcoholic who isn't in recovery, hasn't stopped drinking, and has never received treatment. x:-/

    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
  • It's good to have your summary of the attorneys' comments, James. However, part of the beauty of the Forum has always been reading individual posts and opinions and learning from them. Why didn't they post their own answers? It would have added much greater value to the Forum. Just my opinion. The Forum really should not turn into summaries, polls and articles. We can find that elsewhere. No disrespect, James. x:-)
  • Good point, Don. My discussion with the attorneys was on our editors' e-mail group (listserv). Here are the messages, starting with my question to the group.

    =================================================

    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.)

    =================================================

    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

    =================================================

    I agree with Cal.

    John Vering
    Armstrong Teasdale LLP
    Kansas City, MO
    800-243-5070 X5226

    =================================================

    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

    =================================================

    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

    =================================================

    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

    =================================================
    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.

  • Thanks James. It was almost like having them respond to the Forum. Although, I've never known Mr. Vering to be so brief x:-) .
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