GPSolo Magazine - March 2006

Labor and Employment Law
Does the Americans with Disabilities Act Really Protect Alcoholism?

Although alcoholism is professionally accepted as an impairment, it is not defined as a disability within the Americans with Disabilities Act (ADA). Instead, the Act describes what is not protected with respect to the use of alcohol and illegal drugs. Furthermore, the judiciary has not established a bright-line rule for treatment and accommodation of alcoholism under this Act.

Workplace application of the ADA. In order to make a prima facie case under the ADA, the employee must show that his alcohol use substantially limited one or more major life activities. To do this, he must establish that he (1) is unable to perform one or more major life activities that the average person in the general population can perform or (2) is significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that activity. In determining whether an individual is substantially limited in a major life activity, the court considers the following factors: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact, or expected long-term impact, of or resulting from the impairment.

Few courts have held that the plaintiff can establish that his alcoholism is a disability under the ADA. Instead, courts hold that alcoholism is an impairment, but it does not guarantee that an individual has a substantial limitation of a major life activity that would protect the individual under the ADA. Typically, in establishing a prima facie case, plaintiffs overlook the requirement that the impairment pose a substantial limitation on a major life activity. When the plaintiff does argue that his alcoholism substantially limits a major life activity, it is usually the inability to work. In order to establish that the plaintiff’s ability to work has been substantially limited because of the impairment of alcoholism, the plaintiff must be substantially restricted in performing “either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and ability,” not just a particular position.

Next, if the employee can show that his alcoholism affects a major life activity, then, upon the employee’s request, the employer must reasonably accommodate the employee. But the ADA only requires that the employee be given unpaid time off to participate in a treatment program. Further, it is the employee’s responsibility to request the accommodation. But if the employee has been disciplined for misconduct attributable to the alcoholism, the employer is under no obligation to offer the employee a second chance at reasonable accommodation.

The employer has additional defenses available under 42 U.S.C. sections 12113 and 12114 to defeat an ADA claim, including section 12114(c)(4) of the ADA, which provides that an employer “may hold an employee who . . . is an alcoholic to the same qualification standard for employment or job performance and behavior that such [employer] holds other employees, even if unsatisfactory performance or behavior is related to . . . the alcoholism of such employee.”

Also, courts distinguish between misconduct caused by alcoholism and disability-caused misconduct. Even though the ADA may prohibit employers from holding disabled employees to the same standards of conduct as nondisabled employees, an exception exists that allows an employer to discipline or discharge an employee for misconduct caused by illegal drug use and alcohol use. In addition, “[p]ursuant to 42 U.S.C. § 12114(c)(4), employers need not make any reasonable accommodations for employees who are illegal drug users and alcoholics. However, that is in marked contrast to all other disabilities, where the ADA does require that the employer extend reasonable accommodations.” Therefore, courts distinguish between disability-caused misconduct based on the use of alcohol and misconduct attributable to all other disabilities.

Additionally, the alcoholic employee must overcome the permanency factor under 29 C.F.R. section 1630.2(j) to prove that the alcoholism substantially limits one or more major life activities. The effects of alcohol are usually only temporary, and temporary injuries without permanent effects are not protected. Nonetheless, employees can argue that their history of recovery or treatment for alcoholism is protected because oftentimes a history of treatment raises the arguments that the employer regarded the plaintiff as disabled or the employer had a record of the employee’s treatment.

Therefore, an alcoholic employee may be granted coverage under the ADA, depending upon (1) whether he can establish that the impairment has substantially limited a major life activity; (2) whether he requests reasonable accommodation for the impairment; and (3) whether the employee is regarded as disabled or has a record of a disability that substantially limits a major life activity.

Handling alcoholic employees. Because Congress has not resolved the ADA’s treatment of alcoholics, corporate human resource directors and the judiciary have attempted to establish guidelines for this impairment. In Rogers v. Lehman, the court articulated a five-step process federal agencies must undergo in order to accommodate alcoholics: (1) advise the worker of counseling services; (2) give the employee a “firm choice” between discipline and treatment; (3) allow the employee to participate in outpatient treatment; (4) if that fails, allow the employee to participate in an inpatient treatment program; and (5) if the employee finishes the program but suffers a relapse and work performance is unsatisfactory, discharge is allowed.

Employers have devised neutral no-rehire policies to screen out former employees who were fired for misconduct in order to prevent them from reentering the employer’s workforce. This type of blanket policy would include employees who have a history of drug use or alcoholism and who were fired for misconduct attributable to drug or alcohol use. Rehabilitated drug addicts and alcoholics, however, argue that such a policy circumvents the ADA. Recently, the U.S. Supreme Court granted certiorari in Raytheon Co. v. Hernandez in order to address this issue. Unfortunately, because the Ninth Circuit erred in its analysis of disparate treatment, the Supreme Court offered little guidance on whether a neutral no-rehire policy is permissible under the ADA. However, the Supreme Court left open the option of holding that a neutral no-rehire policy could be in violation of the ADA, while at the same time giving a hint that it may still pass muster by including a footnote reference to a case in which a similar claim was rejected by the Court when brought under the Age Discrimination in Employment Act.

 

Renee Parsons is an associate attorney with the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in Kansas City, Missouri; she can be reached at renee.parsons@ogletreedeakins.com. Thomas J. Speiss III is of counsel with the law firm of Baker & Hostetler LLP in Los Angeles, California; he can be reached at tspeiss@bakerlaw.com.

For More Information about the Section of Labor and Employment Law

- This article is an abridged and edited version of one that originally appeared on page 17 of The Labor Lawyer, Summer 2004 (20:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/labor.

- Periodicals: The Labor Lawyer, journal, published three times per year; Labor and Employment Law, newsletter, published quarterly; substantive committee newsletters, published biannually.

- Books and Other Recent Publications: Covenants Not to Compete: A State-by-State Survey, 4th ed. and 2005 Supp.; Developing Labor Law: The Board, the Courts, and the National Labor Relations Act, 4th ed. and 2005 Cum. Supp.; Employee Benefits Law, 2d ed. and 2005 Cum. Supp.; Fair Labor Standards Act, 2005 Supp.; How to Take a Case before the NLRB, 7th ed. and 2005 Cum. Supp.; International Labor and Employment Laws, vols. 1 and 2, 2d. ed. and 2005 Supp.; Labor Union Law and Regulation, 2005 Supp.; The Railway Labor Act, 2d. ed.; Wage and Hour Laws: A State-by-State Survey, 2005 Supp.

 

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