When Employees Drink Too Much: Employers’ Rights and Obligations
 
June 26, 2002
 
Paul Lannon - Boston

The dangers of alcohol abuse are well known. Nationwide, employers lose thousands of work hours every year due to alcohol-related illnesses. In addition to the health risks, alcoholism in the workplace degrades safety, morale and judgment, and frequently contributes to discrimination and harassment. Yet, state and federal laws have recognized that alcoholism can be a disability triggering legal protection. What’s an employer to do?

An employer’s first to step should be to determine whether the conduct at issue falls outside the zone of legal protection for disabilities. The law is fairly clear that “non-dependent” alcohol abuse, which does not create a substantial limitation on major life activities, is not a legally recognized disability. Just because an employee drinks excessively on occasion does not necessarily mean that the employee is an alcoholic or that he or she has a legally recognized disability.

Second, recognize that in many situations, employers may discipline or terminate an employee for alcohol-related misconduct even if the employee is an alcoholic with a legally recognized disability. Both the Americans with Disabilities Act and the Rehabilitation Act expressly permit employers to prohibit employees from working under the influence of alcohol or illegal drugs. See 42 U.S.C. § 12114(c)(2); 29 C.F.R. § 1630.16(b)(2); 29 U.S.C. § 706(8)(C)(v). Accordingly, employers may discipline or terminate employees who show up for work under the influence, regardless of requests for accommodation.

In addition, the disability discrimination laws do not require employers to lower their performance standards for alcoholics, and do not protect alcoholics from the consequences of their own misconduct. Consequently, courts have been careful to distinguish between employee misconduct and the physical limitations imposed by a disability. If an employee who is disabled by alcoholism commits misconduct that would disqualify a non-disabled employee, then the alcoholic employee is deemed unqualified for his position and not entitled to legal protection. For example, while alcoholism might explain a drunk driving incident, it does not excuse such gross misconduct. Accordingly, courts have upheld an employer’s right to discipline alcoholic employees for drunk driving and similar egregious misconduct. In such circumstances, it is the misconduct, not the employee’s disability, that was the reason for the discipline or discharge. Simply put, employers may demand the same standards of behavior for all employees regardless of disability. See 42 U.S.C. § 12114(c)(4).

Employers need not accept late or unreasonable demands for accommodation. Alcoholism often leads to excessive absenteeism. See Teahan v. Metro-North Computer R. Co., 951 F.2d 511 (2nd Cir. 1991) (assuming a causal relationship between alcoholism and absenteeism) cert. denied, 506 U.S. 815 (1992). If an employee fails to make a timely request for a leave of absence or fails to notify the employer about his or her alcohol-related disability, many courts have acknowledged the employer’s right to discipline or terminate the employee. Similarly, an employer need not accommodate an employee’s request for leave in the face of multiple prior absences and a low probability of his or her rehabilitation.

On the other hand, employees with a legitimate, alcohol-related disability are entitled to request reasonable accommodations under federal and state disability statutes. Employees also may seek treatment on their own and request up to 12 weeks unpaid leave pursuant to the Family and Medical Leave Act. Therefore, excessive absenteeism alone may not justify disciplining or terminating an employee who makes a timely and proper request for leave or accommodation. Employers must take the time to review the specific facts of each situation, on a case-by-case basis, and make an individualized determination of the reasonableness of each request.

It is also important to recognize alcoholism as a disability that can be treated effectively in many cases. By accepting reasonable accommodations designed to rehabilitate alcoholic employees, employers can retain valuable employees and thereby save substantial time, money and morale.

Finally, it is critical for employers to publish written policies regarding alcohol and drug abuse. The policy should be written clearly and made known to every employee. Consistent enforcement will greatly reduce the likelihood of employee lawsuits. See, e.g., Flynn v. Raytheon Co., 868 F. Supp. 383 (D. Mass. 1994) (alcoholic employee may state discrimination claim if employer enforces its alcohol or drug policy less strictly against other non-disabled employees).

In summary, your policy for dealing with alcohol use and abuse by employees should involve three components:

• Adopt and distribute a clear policy regarding drug and alcohol use and apply it consistently.
• Focus on employee behavior when making decisions, and do not speculate about whether an employee may have a drinking problem.
• If an employee informs you about a drinking problem before committing misconduct that would warrant termination of a non-alcoholic employee, engage in an interactive process to identify a reasonable accommodation.

Employers are well advised to consult with their lawyers when drafting or updating their alcohol and drug use policies.

For more information contact Paul G. Lannon Jr. at 888-688-8500 or via e-mail by clicking on his name.