In the last couple of months, our office has gotten a number of questions about the obligations employers have with respect to their employees who are suffering from alcoholism under the Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA). The law in this area is fairly well established and allows employees to handle these types of cases in ways that differ from how other disabilities are treated. Given the somewhat counter-intuitive approach to this specific disability, some helpful reminders are in order.
ADA
Alcoholism has been recognized as a disability under the ADA, but it has been noted by one court that “[t]here is a ‘distinction between termination of employment because of misconduct and termination of employment because of a disability.’” As a result, an employee cannot be terminated or disciplined simply because he or she is an alcoholic. However, the ADA includes a specific exception for drug and alcohol use and conduct that relates to the same, even if it is a result of this disability. Specifically, the ADA provides an employer:
- may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
- may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
- may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee;
As a result, for example, the Third Circuit has found that an employer does not have to accommodate absenteeism attributable to alcoholism. Smith v. Davis, 248 F.3d 249, 251 (3d Cir. 2001). With respect to what accommodations an employer must provide, is has been suggested that the only accommodation required is “that such an employee be given unpaid time off to participate in a treatment program.” Klaper v. Cypress Hills Cemetery, 2014 WL 1343449, *10 (E.D.N.Y. 2014).
However, employers need to ensure that the behavior in question is clearly articulated as improper and that they apply such standards in same manner with alcoholics as they do with other employees.
Accordingly, while alcoholism is a disability under the ADA, in most cases, there is a very limited amount of accommodation that an employer must provide for the same, and it appears it would be limited to allowing the employee to take time off to seek treatment for the same. If the employee engages in improper conduct, even if it is because of the alcoholism, the employee can still be disciplined in the same manner as any other employee. Lastly, a number of courts have permitted employers to require an employee who returns from treatment to enter an agreement that they will not drink and, should they violate that agreement, can be terminated without this additional requirement running afoul of the ADA.
FMLA Leave
Under the FMLA, an employee is entitled to leave related to alcoholism only if he or she is requesting the leave for the purpose of seeking and obtaining treatment for the condition or to care for a relative who is seeking or obtaining treatment. If the employee misses work as result of alcoholism itself, rather than treatment, that does not qualify for FLMA leave.
Thus, the ADA’s and FMLA’s treatment of alcoholism, while well-established, is counter-intuitive to what most employers first reaction would be when dealing with an employee with a disability.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
