Alcoholism and the ADA

USC recently fired its head football coach for allegedly missing practice, only to show up later to a special teams meeting drunk. Sometimes current events serve as good reminders of employment law issues. Let's quickly review alcoholism and the ADA.

The EEOC has provided some helpful guidance:

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” . . . . 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 . . . . The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace.86 Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.

As I succinctly put it on Twitter yesterday:

Under ADA, cannot fire for alcoholism (disability under ADA); can fire for showing up drunk. #CoachSark (allegedly).

— Philip Miles (@PhilipMiles) October 13, 2015

U.S. Steel Alcohol Tests Win in Court

I had a speaking engagement yesterday evening and another one on Thursday, so my blogging will be a little light this week. I did want to toss this story out there though: Judge Throws Out EEOC Case Over Alcohol Tests at U.S. Steel.

A federal judge in W.D. Pa. threw out a "case the commission (EEOC) brought against U.S. Steel Corp over random alcohol testing for new employees at a plant in western Pennsylvania." An employee filed a lawsuit claiming that she was dismissed for a false positive caused by her diabetes. USS settled the individual case, but the EEOC continued its claims against the policy.

As I have mentioned previously, I interned at U.S. Steel in 1999. The plant in question is one of three in the "Mon Valley Works." I worked at one plant (Irvin) and toured another (Edgar Thomson) but have never been to this specific plant. That said, based on my experience in the other two (which was about 14 years ago) - they can be very dangerous! The thought of somebody operating that kind of machinery (or even being around it) while drunk or "buzzed" is horrifying. So, I can certainly understand why USS would want to take the precaution.

HT to Mike Chittenden vie email, and for some more analysis on the topic, check out Robin Shea's post: I'll be darned! Court finds that random alcohol tests don't always violate the ADA.

Alcohol Rehab - Eighth Time's the Charm? - COTW #111

You have to give the employee in this Case of the Week some credit; he recognized that he has an alcohol problem and is trying to address it. The employer also deserves some credit for generally supporting the employee in his struggle. However, Schmidt v. Pennsylvania Turnpike Commission, 2012 WL 4414005 (Sept. 25, 2012) is a case about an employer who eventually said "enough is enough."

The plaintiff entered seven different rehabilitation programs for alcohol (and sometimes drug) dependency from 1999 to 2008. Unfortunately, none of the programs really worked. The employee had attendance problems resulting in a Last Chance Agreement (LCA). The employee once again entered rehab and was out of work, but this time he did not have approved leave. The employer terminated him, prompting an ADA (applying the ADAAA) lawsuit.

The Court understood the concerns of both the employer and the employee. Ultimately, however, the Court ruled in favor of the employer:

[T]he Court believes that its rulings above can, and should, be informed by the jurisprudence recognizing the untenable position presented by an employee who remains dependent on alcohol or drugs after repeated, unsuccessful rehabilitation attempts . . . . Although providing an employee with an opportunity to rehabilitate himself is consonant with both the law and the greater public good, there comes a point where demanding an employer to offer multiple, if not unlimited, opportunities for recovery veers outside the realm of reasonableness.

The Court had additional concerns, including whether the employee had actually requested an accommodation and whether any breakdown in the interactive process was actually the employer's fault.

The Court commended the employee for his efforts to address his problems. However, the employer won on summary judgment.

HT: The Legal Intelligencer - Pa. Turnpike Worker's Drunk Firing Suit Rejected.

Blacked Out Drunk and the ADA

Two women accused Sgt. Clinton Knowles of engaging in what he himself labels "inappropriate and obnoxious behavior." One woman says he "smacked her on the butt" and the other claims he was grabbing her arms and thighs. Not surprisingly, this incident is at the center of a lawsuit... amazingly though, it's Sgt. Knowles who is the plaintiff!

10 Connects reports that Knowles is suing his employer under the ADA. You see, he has a perfectly umm, good (or awful) explanation for his behavior... he was "suffering from alcohol related black-outs." Knowles was terminated in part because of the groping incident of which he claims he has no recollection. Knowles alleges his employer failed to accommodate his disability, alcoholism, by delaying his entry into the "Employee Assistance Program" prior to the incident and his termination.

The employer's decision to terminate Knowles is likely protected by the ADA which provides:

"[Employers] may hold an employee... 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... alcoholism."

42 U.S.C. sec. 12114(c)(4). Knowles' Complaint seems to rely on the employer's failure to accommodate his alcoholism, however, rather than its decision to terminate. Some courts have also relied on the quoted statute for the premise that "employers need not make any reasonable accommodations for employees who are... alcoholics." Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997); and earlier this year in Nanos v. City of Stamford, 609 F.Supp. 2d 260 (D.Conn. 2009).

Regardless of how this case turns out, it may already have a happy ending. The Complaint alleges that for the last year and a half, Sgt. Knowles "has remained sober and in faith-based counseling."

Hat Tip to Overlawyered, where I first heard of this case.