ADA Is No Shield For Employees Who Drink At Work

Multiple Reports of Alcohol Use Led to Discharge
Court Focuses on Employer’s Policy, Extent of Complaints
Investigate Complaints, Act Swiftly

Are you worried you may violate the ADA if you terminate an employee who you suspect is under the influence of alcohol at work? A court decision shows it is possible to follow your policies without breaching the ADA.

Most employers have policies that specifically prohibit employees from being under the influence of alcohol at work and allow for termination if violated. However, many managers are reluctant to discharge employees under these policies because they mistakenly think that they must have direct proof of the alcohol use or that the Americans with Disabilities Act (ADA) prevents them from enforcing the rule against employees who may be alcoholics. A decision by the Seventh Circuit Court of Appeals indicates that employers can enforce their policies and explains the ADA’s protections. In Bekker v. Humana Health Plan, Inc., 229 F.3d 662 (7th Cir. 2000), the court found that the employer did not violate the ADA when it terminated a doctor it had good reason to believe had violated its alcohol use policy.

From 1990 to 1996, several patients and employees complained that a doctor employed by Humana Health Plan smelled of alcohol during the workday. Each time the doctor was confronted with the allegations, she denied drinking alcohol at work, and the employer did not find any concrete evidence. In 1996, after another patient complained of smelling alcohol on the doctor, the employer conducted an investigation into her alleged drinking. Several nurses, patients, and doctors reported they had smelled alcohol on the doctor on numerous occasions.

Based on these accounts, the employer determined that even though it had sufficient reason to terminate the doctor, it would allow her to continue employment if she agreed to certain conditions, including attending a formal recovery program and undergoing random tests for two years. The doctor did not agree to the terms within the allotted time period and was terminated. The termination letter stated that the doctor was discharged because she did not agree to the conditions and because the employer believed she was an alcoholic. The doctor sued, claiming that the employer regarded her as disabled and discriminated against her in violation of the ADA.

The Seventh Circuit’s decision confirmed two key points. First, an employer may terminate an alcoholic who poses a direct threat that cannot be eliminated by accommodation. Second, it may terminate an alcoholic who violates a consistently enforced, nondiscriminatory alcohol use policy.

In addressing the issue of accommodation, the Seventh Circuit agreed that the doctor was disabled under the ADA since the employer clearly "regarded" her as an alcoholic, as evident from its termination letter. (Under the ADA, a person is considered disabled not only if she actually has a disability, but also if she has a record of having a disability or is regarded as having a disability.) However, to be entitled to the protections of the ADA, the doctor also had to show that she was a "qualified individual with a disability" by demonstrating that she could perform her duties without posing a direct threat to the health or safety of her patients.

The court determined there was "ample evidence," including the numerous reports of her smelling of alcohol at work, to show that the doctor was a direct threat to her patients’ health or safety. The court then addressed whether the threat could be reduced or eliminated by an accommodation. It rejected the doctor’s proposed accommodation of daily alcohol testing as both overly burdensome on the employer and ineffective since it would not ensure that the doctor did not use alcohol after the test. At the same time, the court noted that the employer’s requirement that the doctor enter a recovery program could have been a reasonable accommodation, but the doctor did not agree to it. Thus, the court concluded the doctor was not a "qualified individual with a disability" and, therefore, not protected by the ADA.

The court also addressed the employer’s application of its alcohol use policy. It pointed out that the ADA allows employers to implement policies prohibiting the use of alcohol in the workplace and to hold alcoholics to the same standards of performance and behavior as it holds other employees. The employer’s policy clearly prohibited employees from working while under the influence of alcohol or drugs, and it stated that employees may be terminated for violations. In addition, the employer had sufficient evidence to believe that the doctor had been under the influence of alcohol at work. Therefore, since the employer would not tolerate that conduct from non-alcoholic employees, the doctor’s termination for violation of the policy did not violate the ADA.

So how can you enforce prohibitions against alcohol use in your workplace without violating the ADA? Here are three suggestions:

1. Implement a policy prohibiting alcohol use. The policy should address use at work and working while under the influence of alcohol. Most employers include this language as part of a policy covering both drugs and alcohol.

2. Enforce the policy on a consistent basis. Investigate all allegations of alcohol use and take action based on your findings. As this court pointed out, you do not have to have concrete evidence of its use, such as seeing the employee drink the alcohol or a positive alcohol test. You only need a reasonable belief, based on your objective investigation, that it is likely the employee violated your policy.

3. Do not label an employee who violates your alcohol use rule an alcoholic. If you do, you will complicate your ability to take action because, as in this case, the employee will be able to claim she is protected by the ADA since your label shows you "regard" her as having a protected disability.

As a somewhat different approach, consider requiring the employee to seek treatment as part of a "last chance agreement." Typically, a last chance agreement requires the successful completion of a rehabilitation program and improved job performance as a condition of continued employment. This required treatment option balances your need for a productive worker with the recognition that the employee has a serious problem. Remember, you do not have a legal obligation to offer leave for treatment to an alcoholic who violates your work rules by drinking on the job. However, a leave of absence may be an appropriate ADA accommodation for an alcoholic who has not violated your rules and wants time off from work to seek treatment. Finally, whatever course you follow, make sure you treat the employee in a consistent manner under your policies to limit ADA claims.