Cutty Sark: Addiction and Disability Discrimination in the Workplace
One of my former football coaches just sued my former football team and university today. This is surreal to say the least.
Former USC coach Steve Sarkisian filed suit against the university. According to the lawsuit filed in Los Angeles, Sarkisian alleges that the university fired him without "accommodating" his efforts to seek treatment for his "disability" - Alcoholism. The complaint asks for at least $12.6 million in damages, but Sarkisian's attorney has stated that he will seek more than $30 million.
Alcoholism (and drug addiction) in the workplace, whether in big-time sports organizations like USC or other businesses, presents many legal and human resource management issues. Federal and California state disability and leave laws can greatly complicate an already difficult situation.
Alcoholism and Addiction are disabilities. Period. The Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, and the California Fair Employment and Housing Act (FEHA), which applies to employers with five or more employees, both consider alcoholism a protected disability.
The ADA defines a covered disability in three ways. Specifically, an employee has a covered disability if the individual:
1. "has a physical or mental impairment that substantially limits one or more major life activities of such individual; or
2. has a record of such an impairment, or
3. [is] regarded as having such an impairment."
An individual must have either a physical or mental impairment to be disabled under the ADA's first definition of disability. While the ADA does not further define these terms, the Equal Employment Opportunity Commission's (EEOC) ADA regulations implementing Title I and the ADA's legislative history, two significant sources of guidance, define physical and mental impairment.
Specific disorders which are physical or mental impairments under the first definition of a covered disability include: orthopedic, visual or speech impairments; HIV infection (AIDS); cancer; alcoholism; diabetes; and emotional illness.
Rehabilitation Act Coverage
Federal employers, federal contractors and recipients of federal funding, governed by §§501, 503 and 504 of the Rehabilitation Act 29 USCA §708(8)(C)(v), also consider alcoholism a covered disability, unless the employee's current use of alcohol prevents the employee from performing the duties of the job or the employee is a direct threat to the property or safety of others.
A Covered FMLA Illness
An employee qualifies for Family Medical Leave Act (FMLA) leave if he or she has a "serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 USCA §2612(a)(1)(D). Alcoholics who have undergone treatment by a health care provider are generally deemed to have a serious health condition under the FMLA.
The employer must allow an alcoholic FMLA/CFRA (California Family Rights Act) leave for treatment up to a 12-week limit. To avoid violating the ADA, the employer should provide leave for a certified need for rehabilitation at least up to the maximum amount of leave the employer provides employees for other reasons. However, leave does not need to be provided due to an incapacity to work due to intoxication or its after-effects.
The ADA or Rehabilitation Act may require an additional reasonable accommodation if the employee has other disabilities. Depression, for example, is a common companion to alcoholism, and the employee may legitimately request a less stressful position if available and the employee is qualified.
The FMLA and the CFRA require that the employee be returned to a same or similar position after protected leave.
Alcoholism in the Hiring Process
Prior to extending a job offer, the EEOC and the California Fair Employment and Housing Commission have taken the position that testing for alcohol is prohibited in a pre-offer medical exam. Although an employer can ask a job applicant whether he or she drinks alcohol, the employer cannot ask if the applicant is an alcoholic. After a conditional job offer is made, the employer can ask the applicant about past or present alcohol use and possibly require testing.
Under the ADA and California state law, an employer may hold an alcoholic employee to the same standards for job performance and behavior that it sets for other employees, "even if any unsatisfactory performance or behavior is related to the "... alcoholism of such employee." 42 USCA §1211(c)(4)
Discipline and Discharge
If an employee is functioning the same as everyone else in his or her essential job functions, an employer cannot discharge the employee simply for being an alcoholic. Employers should have clear standards and job descriptions as well as alcohol and drug use policies.
If an employee's performance is suffering apparently due to alcohol abuse, the employee's supervisor should first meet with the employee, outline performance problems and try to find the cause of such problems. The supervisor should present the assistance offered by the employer for alcoholism (e.g. health benefits, time off for rehabilitation, counseling, employee assistance programs). The supervisor should document the meeting, and if the employee acknowledges possible alcoholism, the record should be placed in the employee's confidential medical file, as required by the California Medical Records Act, rather than a general employment file.
Reasonable Accommodation, Treatment and Rehabilitation
If the employee denies having a drinking problem, the employer should take the employee's word or risk a disability lawsuit on the grounds that the employee was terminated because the employee was "regarded" as having the disability of alcoholism.
If such an employee requests leave to participate in a rehabilitation program, the employer should provide it or risk liability for failing to accommodate the employee's disability. In addition, any reports of harassing comments about alcoholism should be investigated and discriminatory comments about a recovering alcoholic or an employee in treatment should be avoided.
Supervisors should not give the impression that alcoholism is the reason an employee is being disciplined or is on leave from work. The California Labor Code (§1026) safeguards employee privacy in this regard.
An employee's alcoholic dependency should only be addressed by recommending or granting the employee's request for a treatment program. A leave to undergo a treatment program is the most common reasonable accommodation employers provide for alcoholic employees. The Department of Labor is clear that the FMLA covers only absences needed to obtain treatment and does not cover absences caused by the use of alcohol, 29 CFR §825.114(d), including time spent in jail.
In addition, California Labor Code §1025 provides that every private employer regularly employing 25 or more employees shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer.
Like the Rehabilitation Act for federal employees, the Labor Code also provides that an employer may refuse to hire or discharge an employee due to the employee's current use of alcohol, the inability to perform his or her duties, or the inability to perform duties without endangering the health or safety of himself or herself and others.
The employee must request an accommodation. If the employee does not tell the employer of his or her disability and request reasonable accommodation, the employer is not obligated to provide one.
Thus the employer is generally not obligated to accommodate an employee who denies that he or she has a problem. Of course, where the choice is between termination and rehabilitation, most employees will admit to a problem and request rehabilitation.
Alcoholism and/or drug addiction are recognized disabilities under the law. Putting up with employees who use alcohol and drugs in the workplace, i.e. being drunk or under the influence of drugs, or missing work or being late because of a hangover/binge is not however considered a reasonable accommodation and/or may subject you to immediate termination. However, treatment for alcoholism or drug addiction may be considered a reasonable accommodation for people with the disease of addiction. The key is to seek help before you are terminated for the behavior and call a qualified employment lawyer to find out what your rights actually are.