From the Hotline: Employee Protection Under Disability Laws

Question: Can our client discipline an employee who has admitted to his manager that he has a drinking problem?  Or is the employee protected under the disability laws?

Answer: The answer to the question depends upon what the employee is requesting of his manager related to his problem with alcohol.  If the employee is requesting time off to seek treatment for the problem, then the employer will most likely need to accommodate the request for time off with appropriate medical certification under the provisions of the Americans with Disabilities Act (ADA).    If the employee is requesting special consideration as it relates to performance or attendance, then most likely the employer does not need to accommodate that request.

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against employees with disabilities. It applies to employers with at least 15 full-time employees. The ADA not only protects employees who are disabled or have a “record” of being disabled, it also protects employees who are “regarded as” disabled by their employer as well as employees who are “known to have a relationship or association” with another person who is disabled (42 U.S.C. s. 12101 and 12102(3)).  The ADA generally supports that an employee suffering from alcoholism has “a physical or mental impairment.” What is required is medical proof, though, that the employee’s major life activities are substantially limited by his condition.

An employer is not required to accommodate an employee’s intoxication or the adverse effects of excessive alcohol use, such as allowing the employee to arrive late to work due to the effects of a hangover. On the other hand, the employer may be required to accommodate the employee’s efforts to obtain treatment for the alcoholism (including attendance at Alcoholics Anonymous meetings if that is part of the rehabilitation plan). The ADA expressly 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 entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.”

Employees who drink on the job, are drunk on the job, or who fail to perform their duties due to drinking or who engage in misconduct due to drinking may be subject to appropriate discipline, up to and including termination of employment. The only requirement is that the employer must treat alcoholic and non-alcoholic employees the same, and may not impose different penalties for the same offenses depending on whether or not the employee is an alcoholic.