In several recent decisions, courts have recognized that current or recovering alcoholics may be entitled to protection under the Americans with Disabilities Act (ADA). See Salley v. Circuit City Stores, 160 F.3d 977 (3d Cir. 1998); Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997). These decisions balance an alcoholic employee's need for rehabilitation or other accommodations with the employer's expectations of regular attendance and proper behavior on the job.
Alcoholic employees may be protected by the ADA if they can prove that they are "substantially limited in a major life activity" or that they are "regarded as" such. For example, an alcoholic employee may be substantially limited in his or her ability to walk, talk, think, or work as a consequence of uncontrolled drinking. For alcoholic employees protected by the ADA, reasonable accommodation normally will involve granting appropriate leave to attend a detoxification or rehabilitation program. However, courts normally do not expect an employer to grant a second chance to an employee who suffers a relapse after participating in rehabilitation. Courts also agree that employers do not have to excuse a violation of company policy as a reasonable accommodation for an alcoholic employee. Often, a "last-chance" agreement between an employer and employee can document the employee's treatment and rehabilitation obligations and support disciplinary action if the employee does not live up to his end of the agreement.
Although employers are expected to provide reasonable accommodation to individuals with disabilities, nothing in the ADA requires an employer to tolerate drinking or drug use on the job, or an employee who comes to work under the influence of drugs or alcohol. Moreover, employers may discipline employees for improper behavior on the job, even if the employee can attribute the action to his or her alcoholism. For example, an alcoholic manager who claims that his alcoholism led him to drink, and that he sexually harassed his secretary while intoxicated, could not win an ADA lawsuit if the employer terminated him for the harassment.
Employers should proceed with more caution when considering appropriate discipline for alcoholic employees with poor attendance records. Most courts have recognized that regular attendance is an essential function of most jobs. An alcoholic employee who cannot maintain regular attendance usually would not be considered a "qualified" individual with a disability protected by the ADA. However, absences during an agreed-upon period of leave for detoxification, rehabilitation, or treatment for alcoholism normally would be considered part of the employer's obligation to reasonably accommodate the employee's condition, and should not be counted against an employee under an attendance policy. Such a leave of absence also might be protected by the Family and Medical Leave Act (FMLA), since the leave would be used to obtain treatment for the employee's own serious health condition.
Finally, employers are not required to tolerate off-the-job, alcohol-related misconduct that may affect an employee's ability to do his or her job. If a job requires a valid driver's license, for example, an employer would be permitted to terminate an alcoholic employee who lost a driver's license as a result of a conviction for driving under the influence of alcohol.
In summary, as long as alcoholic employees are not under the influence of alcohol at work, employers should consider offering a reasonable period of leave for a good-faith attempt at rehabilitation. By adopting strict no-alcohol and drug policies for the workplace and using last-chance agreements to document an employee's rehabilitation obligations, employers will be well prepared to take disciplinary action, if necessary.