Legal Clinic

Under the Influence

Questions this month involve the rights -- and responsibilities -- of employees with drug or alcohol problems. What treatments are protected by the ADA? And should alcoholic employees be held to the same workplace standards as other employees?

Monday, January 24, 2011
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Question: Does Alcoholics Anonymous or a church group qualify as supervised treatment for alcoholism under the Americans with Disability Act? 

Answer: As a primary point, the ADA protects employees who suffer from alcoholism if they are in treatment for the addiction or have completed a rehabilitation program.

As with all ADA claims, the alcoholic must be otherwise qualified to complete the essential functions of the job with or without accommodation, and to the extent accommodations are offered, they must not cause not cause "undue hardship" to the employer. See HREOnlineTM article of July 14, 2008.

A "rehabilitation program" is defined by U.S. Equal Employment Opportunity Commission regulations as "both in-patient and out-patient programs, as well as appropriate employee-assistance programs, professionally recognized self-help programs, such as Narcotics Anonymous, or other programs that provide professional (not necessarily medical) assistance and counseling for individuals who illegally use drugs." 29 C.F.R. Part 1630, app. ยง 1630.3(a) (2000).

Because these regulations specifically list Narcotics Anonymous as a satisfactory rehabilitation, Alcoholics Anonymous would likely also be considered a sufficient rehabilitation program.

With respect to other church-group rehabilitation programs, the answer is less clear and would be fact-specific and depend on the reputability, formality and professionalism associated with the specific program.

Question: If drug/alcohol problems lead to un-notified and unexcused absences, can the offending employee be held to the same rules and be disciplined just as anyone else at work who does not show up for work -- or are employers required to provide special treatment because of the drug/alcohol problems?

Answer: If alcohol and/or drug problems lead to un-notified or unexcused absences, an employer can hold the offending employee to the same standards, rules and discipline as all other employees, even if alcoholism is considered a disability under the ADA.

Section 12114(c)(4) of the ADA provides that an employer "may hold an employee ... who is an alcoholic to the same qualification standards for employment or job performance and behavior that such [employer] holds other employees, even if the unsatisfactory performance or behavior is related to the ... alcoholism of such employee."

An employer may have an obligation to accommodate an alcoholic employee's treatments, i.e., providing that employee with a work schedule that will allow the employee to attend AA meetings, or other forms of counseling and rehab; however, this accommodation does not extend to excusing prohibited behavior due to alcohol consumption. See Ames v. Home Depot U.S.A., Inc., No. 09-4151, 2011 WL 31855 (7th Cir. Jan. 6, 2011); Vandenbroek v. PSEG Power CT, LLC, 356 F. App'x 457 (2d Cir. 2009).

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Several courts have held that unannounced and unexcused absences from work prevent a disabled individual from being "otherwise qualified" for the position, and therefore outside of the scope of protection under the statute's protection. See Waggoner v. Olin Corp., 169 F.3d 481, 484-85 (7th Cir. 1999) ("it [is] fair to conclude that in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance at the job site is a basic requirement of most jobs"); Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) ("Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise") (internal quotations and citations omitted); Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (holding that an employee with a history of occasional un-notified absences is not otherwise qualified under the Americans with Disabilities Act).

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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