Alcoholism is the single largest and most economically destructive addiction in America as an estimated seventeen million Americans struggle with some phase of alcohol addiction at a cost to industry of 6 billion each year, according to a survey by the National Survey on Drug Use and Health.
The business costs of alcohol abuse can include loss of productivity, damages caused by an alcoholic employee, and any treatment required to help an employee recover from their addiction.
Does the ADA require that we keep this under-performing employee on our payroll just because he is enrolled in a drug rehabilitation program? Although an employee's status as an alcoholic or a recovering drug addict may merit protection under the ADA in certain circumstances, including when the employee is in rehabilitation and is no longer using, an employee or job applicant is not "a qualified individual with a disability" if he or she is "currently engaging in the illegal use of drugs." 42 U. The EEOC advises that the term "currently engaging" "is not intended to be limited to the use of drugs on the day of, or within a matter of days or weeks before, the employment action in question." EEOC Interpretive Guidance on 29 C. Courts may also consider: Even if an employee does qualify for the safe harbor provision, that does not afford him automatic protection. The employee must further show that he is a "qualified" individual with a disability, which means that he must demonstrate that he can perform the essential functions of his job without reasonable accommodation. The employer may, however, act on the basis of the employee's poor performance, even if that poor performance is a result of the drug abuse. If an employer has a drug testing policy, the employer should ensure that the drug tests use reliable methods. This case appears to be an outlier, but it serves as a reminder that it is important to always thoroughly document performance and disciplinary problems to show that the reason for taking action against an employee is not pretextual. Courts applying the amended ADA continue to rely on ADA case law preceding the amendments. Precision Castparts Corp., 2012 WL 2577535 at *3-5 (S. Proskauer Associate Laura Deck assisted with this article.
Employees generally cannot benefit from the safe harbor provision if they have not refrained from the illegal use of drugs for a sufficient period of time. 2011) (no safe harbor where employee had completed rehab and had been drug-free for 30 days); Brown v. 2001) (no safe harbor where employee was in rehab at time of termination but had "not refrained from the use of drugs and alcohol for a sufficient length of time"); Shirley v. July 3, 2012) (no safe harbor where employee had been in and out of rehab recently and was no longer illegally using prescription drugs, but he had "engaged in the illegal use within the weeks and months preceding his termination").
Federal and state laws dictate at what point an employer may terminate an alcoholic employee; any employer faced with the negative affects of alcohol in the workplace should consult an experienced attorney before taking any action.
If an employer offers appropriate accommodation to an alcoholic employee, and the problems with the employee's alcohol abuse and resulting performance persist, than an employer can rightfully terminate the employee.
When the Americans With Disabilities Act was passed 25 years ago, many people may have assumed that the law was written only to protect the rights of people with physical disabilities.
But that’s never been the case, said Cindy Held Tarshish, ADA Minnesota program manager for the Metropolitan Center for Independent Living.
You can’t be discriminated against in employment matters.
Employers have to provide a reasonable accommodation within the workplace.