== Site Navigation ==

Main Page Past Shows About Us Show Hosts Comment

== Project Sites ==

Disability Law Lowdown Podcast Disability Law Lowdown Podcast
en Espanol
Disability Law Lowdown Podcast
in ASL Southwest ADA Podcast

This work is licensed under a Creative Commons Attribution - Noncommercial - No Derivative Works 3.0 United States License

[ Listen | Download | Transcript | Printer Friendly Version (New window) ]

You are listening to the Disability Law Lowdown Show #19



[music plays]

Jacquie Brennan:  Hi, this is Jacquie Brennan, your host for the Disability Law Lowdown.  

Today’s podcast is going to discuss alcoholism and the illegal use of drugs by employees with disabilities.  This is part of guidance that the Equal Employment Opportunity Commission recently issued called “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”  They did this in a question-and-answer format so that is the way I’m going to present it as well. 

Q:  Does the ADA protect employees with substance abuse problems?

A:  Well, the ADA may protect a qualified alcoholic who can meet the definition of disability.  The ADA does not protect an individual who currently engages in the illegal use of drugs, but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs who can meet the other requirements for the definition of disability and who is qualified.  

So, as we’re really going to explain in the questions that are coming up, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

Q:  May an employer require an employee who is an alcoholic or who illegally uses drugs to meet the same standards of performance and conduct applied to other employees?

A:  Yes.  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 employees alcoholism or illegal use of drugs do not have to be tolerated if similar performance or conduct would not be acceptable for other employees.

As an example, a federal police officer is involved in an accident on agency property for which he’s charged with driving under the influence of alcohol, DUI.  About a month later the employee receives a termination notice stating that his conduct makes it inappropriate for him to continue in his job.  The employee states that this incident made him realize that he is an alcoholic and that he’s obtaining treatment and he seeks to remain in the job.  The employer may proceed with the termination.  

Another example, an employer has a lax attitude about employees arriving to work on time.  One day a supervisor sees an employee he knows to be a recovered alcoholic come in late.  Although the employees tardiness is no worse than other workers and there’s no evidence to suggest the tardiness is related to drinking, the supervisor believes such conduct may signal that the employee is drinking again.   So the employer reprimands the employee for being tardy.  The supervisor’s actions violate the ADA because the employer is holding an employee with a disability to a higher standard than similarly situated workers.  

Q:  Must an employer discipline an employee who violates a workplace policy that prohibits the use of alcohol or illegal use of drugs in the workplace?

A:  Yes.  The ADA specifically permits employers to prohibit the use of alcohol or illegal drugs in the workplace.  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.  

Employers may comply with other federal laws and regulations concerning the use of drugs and alcohol including the Drug Free Workplace Act of 1988, regulations applicable to particular types of employment like law enforcement positions, regulations of the Department of Transportation for airline employees, interstate motor carrier drivers and railroad engineers, and regulations for safety sensitive positions established by the Department of Defense and the Nuclear Regulatory Commission.

Q:  May an employer suggest that an employee who has engaged in misconduct due to alcoholism or the illegal use of drugs go to its Employee Assistance Program, the EAP, in lieu of discipline?

A:  Yes, the employer may discipline the employee or suggest that the employee seek help from the EAP or even do both.  An employer will always be entitled to discipline an employee for poor performance or misconduct even if it results from alcoholism or drug addiction.  But an employer may choose instead to refer an employee to an EAP or to make such a referral to an opposing discipline.  However, the ADA does not require employers to establish Employee Assistance Programs or to provide employees with the opportunity for rehabilitation in lieu of discipline.

Q:  What should an employer do if an employee mentions drug addiction or alcoholism or requests accommodation for the first time in response to discipline for unacceptable performance or conduct?

A:  The employer may impose the same discipline that it would for any other employee who fails to meet its performance standard or who violates a uniformly applied conduct rule.  If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for accommodation.  An employee whose poor performance or conduct is attributable to the current use of illegal drugs is not covered under the ADA.  

So, the employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary actions it deems appropriate although nothing in the ADA would limit an employer’s ability to offer leave or some other assistance that may enable the employee to receive treatment. 

By contrast, an employee whose poor performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation separate from any disciplinary action the employer chooses to impose and assuming the disciplinary action for the infraction is not termination.  If the employee only mentions the alcoholism and makes not request for accommodation, the employer may ask if the employee believes an accommodation would prevent further problems with performance or conduct.  

If an employee requests an accommodation, the employer should begin an interactive process to determine if an accommodation is needed to correct the problem.  This discussion may include questions about the connection between the alcoholism and the performance or conduct problem.  The employer should seek input from the employee on what accommodations may be needed and may also offer its own suggestions.

Possible reasonable accommodations may include a modified schedule to permit an employee to attend an on-going self-help program.  For example, an employer has warned an employee several times about her tardiness.  The next time the employee is tardy, the employer issues a written warning stating one more late arrival will result in termination.  The employee tells the employer that she is an alcoholic.  Her late arrivals are due to drinking on the previous night and she recognizes that she needs treatment.  The employer does not have to rescind the written warning and does not have to grant an accommodation that supports the employee’s drinking such as a modified work schedule that allows her to arrive late in the morning due to the effects of drinking the previous night.  However, absent undue hardship, the employer must grant the employee’s request to take leave for the next month to enter a rehabilitation program.

Q:  The last question, must an employer provide a firm choice or last chance agreement to an employee who could otherwise be terminated for poor performance or misconduct resulting from alcoholism or drug addiction?

A:  An employer may choose, but is not required by the ADA, to offer a firm choice or last chance agreement to an employee who could otherwise be terminated due to poor performance or misconduct that results from alcoholism or drug addiction.  Generally, under a firm choice or last chance agreement, an employer agrees not to terminate an employee in exchange for an employee’s agreement to receive substance abuse treatment, refrain from further use of alcohol or drugs and avoid further workplace problems.    A violation of such an agreement usually warrants termination because the employee failed to meet the conditions for continued employment. 

I hope this answered some of your questions about drug addiction and alcoholism under the Americans with Disabilities Act and that you’ll tune in to the next Disability Law Lowdown.  Thanks for listening.

[music]

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability-related laws.  Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research.

You can subscribe to the Disability Law Lowdown at our website,  disabilitylawlowdown.com or on iTunes.  



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.