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Is Alcoholism Conisdered a Disability?

Published Thursday, May 30, 2019
by Kim Gusman, President & CEO

guy with a drink in his hand Yes, alcoholism can be a disability under the Americans with Disabilities Act. The EEOC notes here that the ADA may protect a “qualified” alcoholic who can meet the definition of “disability.”  An individual with a disability is a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

What is a “qualified” alcoholic? Someone who can perform the essential functions of the job with or without accommodation.

So, how do you accommodate alcoholism?

(Spoiler Alert: It’s not much different than accommodating other disabilities.)

For starters, the individual may not require an accommodation at all. For example, an alcoholic who is many years sober is still an alcoholic. Presumably, that individual won’t need any help doing his or her job.

But, others may.

As with any other situation like this one, the onus is on the person with the disability to identify the disability and request an accommodation. Then it’s your turn to schedule a good-faith, interactive dialogue to see what you can do to help. The goal is to figure out a way to help the person do his or her job without creating an undue hardship for the employer.

Some ideas:

  • Adjusting an employee’s schedule to allow him or her to attend AA to remain clean and sober.
  • Extended time off to go to an alcohol treatment facility. As long as that person doesn’t use that time off to imbibe, both the ADA and the Family and Medical Leave Act may protect that worker.

Allowing a person to drink at work? No. Indeed, most of you probably have policies prohibiting that sort of thing. So, alcoholic or not, you’re allowed to enforce your workplace rules. Just make sure that you do so evenly.

Do we have to fire an alcoholic who comes to work drunk?

It depends on your policy.  Unless your drug and alcohol policy offers no second chances to anyone who comes to work under the influence, you have other options such as an EAP or a last-chance agreement.

For instance, in this recent federal court opinion about a police officer who struggled with alcoholism, the employer offered him the chance to get treatment. However, the two sides agreed on a treatment plan, but the police officer didn’t follow through. So, the police department ended his employment.

The officer sued for disability discrimination and lost, ultimately because he could not establish that the police department had treated other non-alcoholic employees who had alcohol-related incidents any better than it treated him.

Source: Eric B. Meyer, FisherBroyles LLP reprinted with permission from ThinkHR

 

A Note from CEA about California laws and Alcoholism:

As mentioned in the article, alcoholism may be a protected disability but employers can still enforce their drug and alcohol-related policies to prohibit use or impairment at work.

In fact, the California Labor Code also expressly states that the law does not “prohibit an employer from refusing to hire, or discharging an employee who, because of the current employee’s use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others.”

A few special things to note about California law:

  • California liberally defines protected “disability to include impairments that only “limit” (rather than “substantially limit” as required under the ADA) the ability to work.
  • The California Family Rights Act entitles employees to up to 12 weeks of job-protected leave for alcohol-related disabilities. After the 12 weeks, extended leaves of absence may be a further, reasonable accommodation under both California and federal law.
  • Employers may also have to accommodate alcoholic employees when they return to (or remain in) the workplace, which may include granting time off or intermittent leave to attend Alcoholics Anonymous meetings or other support groups.
  • California’s Labor Code (Labor Code §§ 1025 to 1028) requires a private employer with 25 or more employees to accommodate an employee who voluntarily requests to enter and participate in an alcohol rehabilitation program. Such a request may be denied only if doing so would impose an undue hardship on the employer. What is unclear is how many times an employee can request such an accommodation, and whether an employer can require an employee to execute a “Last Chance Agreement” to prevent abuse of Labor Code section 1025. Employers should consider consulting experienced employment counsel before presenting an employee with such an agreement and acting on any violations of it.

Employers must tread carefully so as to avoid a claim that any action taken is based on the employee’s protected alcoholism rather than a violation of work rules.

Resources on alcoholism at work:

 

 

 


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