New England Biz Law Update
Are recovered alcoholics protected by the ADA? Can an employer discharge an alcoholic who requests a leave of absence to attend a treatment program? Does a history of alcohol abuse affect a “major life activity” under the ADA?
These are just some of the issues that employers are grappling with on a day-to-day basis, and if anything, recent court decisions have made it even more confusing for employers attempting to address these problems in the workplace.
The question of what to do about an alcoholic employee is a very difficult one. To the extent that an alcoholic employee’s abuse of alcohol affects the employee’s ability to perform his or her job, there is support, based on recent court decisions, for the notion that the employer has the right to discipline or even discharge that employee.
On the other hand, the recovered alcoholic, or the employee with a record of alcohol abuse, who is not currently using or abusing alcohol, presents a whole different set of issues for the employer. Is it proper for the employer to consider that the alcoholic employee might relapse into alcohol abuse when determining whether to give the employee additional responsibilities, or when considering the employee for a promotion?
What about the employer who learns that an applicant for employment has a record of alcohol abuse? Can the employer make an adverse hiring decision even though the applicant is not currently using alcohol? Unfortunately, there is no clear answer to these questions, and recent court decisions are of little to no help in resolving the day-to-day dilemmas employers face with respect to the treatment of alcoholic employees.
The ADA defines a “disability” as a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. 42 U.S.C. §12102(2). Alcoholism is considered to be a mental, rather than a physical, impairment.
Does Alcoholism Limit Major Life Activities?
The difficult issue becomes whether alcoholism substantially limits one or more of the major life activities of such individual. Major life activities are defined as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. §1630.2(i). In order for the impairment to be considered “substantially limiting,” the impairment must render “the individual unable to perform a major life activity that the average person in the general population can perform.” 29 C.F.R. §1630.2(j)(i).
The EEOC has also clarified the definition of “substantially limiting” by stating “an impairment is substantially limiting if it significantly restricts the duration, manner, or condition under which an individual can perform a major life activity as compared the average person in the general population’s ability to perform that same major life activity.” 29 C.F.R. §1630.2(j)(ii).
The problem for employers attempting to determine whether an alcoholic employee is protected by the ADA is how to apply the definitions set forth in the ADA to real life circumstances. This is even more difficult with respect to alcoholics than with other employees with physical or mental impairments because it is only during times when the alcoholic is not abusing alcohol that the ADA affords protection to that individual. Unfortunately, the courts have not been much help to the employer attempting to make these day-to-day determinations.
There was a split of authority among the U.S. Circuit Courts of Appeal as to whether alcoholism is a disability or whether it requires an individualized inquiry to determine whether a particular employee’s alcoholism qualifies that employee for the protection of the ADA.
Since the passage of the ADA, the Fourth and Seventh Circuits have consistently held that alcoholism is a per se disability, often making this determination based on the belief that alcoholism is a disease. As a result, employees in these circuits who can demonstrate that they are alcoholics do not need to undergo the individualized inquiry into how alcoholism “substantially limits” a major life activity.
If an individual employee can demonstrate that he or she is an alcoholic, the employee is also able to claim that a disability exists and that the ADA’s protections apply. In these circuits, as long as the employee is not currently using or abusing alcohol to the detriment of his or her ability to perform the essential functions of his or her job, the employer is prohibited from discriminating against the employee solely on the basis of the employee’s alcoholism.
Other circuits require a more individualized assessment of whether the alcoholic employee (or applicant) is protected by the ADA. The First, Fifth, Sixth, Eighth and Tenth Circuits all require an assessment of whether the individual employee’s alcoholism substantially limits a major life activity in order to determine whether the employee is actually disabled under the terms of the ADA.
In these circuits, the inquiry does not presuppose that alcoholism can never be a disability, rather alcoholism may be a disability it if meets the statutory test. This ensures that properly determined disabled alcoholic employees receive the protection afforded by the ADA, but those that cannot demonstrate that the alcoholism affects a major life activity do not receive these same protections. Unfortunately, the standard in the circuits creates the classic “catch 22” for both employers and alcoholic employees
The test in the Circuits that require an individualized analysis of whether the alcoholic employee is protected by the ADA, including in the First Circuit, turns on whether the individual employee’s alcoholism affects a major life activity. Examples of major life activities include walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself and working. 29 C.F.R. §1630.2(i).
While it is obvious that an alcoholic that has abused alcohol, or is currently inebriated will be affected in one or all of these major life activities, an employer has no obligation to comply with the ADA with respect to an employee who is currently using, or abusing alcohol in the workplace. On the other hand, it is very difficult to demonstrate that any of these major life activities is affected as a result of the alcoholism of one who is not currently using or abusing alcohol. Thus, while these Circuit Courts require an individualized assessment of whether the particular employee’s alcoholism meets the statutory definitions of disability, the practical problem for both the alcoholic employee and the employer is that few recovered alcoholic employees can demonstrate that they fit the statutory definition of a disabled individual.
Recent Supreme Court Decision
The Dec. 2, 2003 U.S. Supreme Court decision in Raytheon Company v. Joel Hernandez, 124 S. Ct. 513 (2003), while not answering the question of whether an alcoholic, or a former drug addict for that matter, is protected by the ADA, does give hope to those who would advocate for the per se disability determination for those with alcoholism (as well as for former drug addicts) based on having a disease.
In the Raytheon Company opinion, Justice Clarence Thomas suggests that the court would recognize drug addiction (and likely alcoholism as well) as a disability under the ADA. The decision itself turned on whether the lower court had applied the proper analysis to the facts of the case. Thomas held that the Ninth Circuit had applied the wrong test and remanded the case for further proceedings.
In the opinion, however, Thomas wrote as if to assume that drug addiction is a disability and that former drug addicts are protected by the ADA. If the Supreme Court were to come down in a similar fashion in the future, it is almost assured that alcoholism would be given the same kind of protection as Thomas seemed to be considering for former drug addicts. Future Supreme Court decisions on these issues will be much anticipated.
To make matters worse for employers, a number of Circuit Courts have also determined that the opportunity to seek treatment for alcoholism is a reasonable accommodation under the ADA. The issue of whether to provide a reasonable accommodation is, of course, part of the analysis of whether a disabled employee is entitled to the protections of the ADA.
An employee with a disability must be able to perform the essential functions of his or her job with, or without, a reasonable accommodation. 42 U.S.C. §12111(8). In those Circuits, like the Fourth Circuit, which have determined that alcoholism is a per se disability, this is not problematic. The alcoholic employee is considered to be disabled, and such an employee requesting time off for treatment of the alcoholism must be granted this opportunity as a reasonable accommodation. Rogers v. Lehman, 869 F.2d 253 (4th Cir. 1989).
In other Circuits, such as the Sixth and the Eighth, the employer faces a dilemma. In these Circuits, an individualized analysis of whether the alcoholic employee is disabled must be done, but these Circuits have also found that providing an alcoholic time off for treatment is a reasonable accommodation.
Thus, although employers in these Circuits might determine that an individual employee’s alcoholism does not affect a major life activity, the employer may still need to, out of an abundance of caution, grant the employee time off to seek treatment as a reasonable accommodation for his or her alcoholism, even in a circumstance in which the alcoholism itself has not yet been determined to be a disability.
What’s Next?
Where does this leave employers and alcoholic employees? For employers hoping to avoid liability under the ADA, and the expensive and costly litigation that can result even in successfully defending an adverse employment action, an aggressive posture with respect to treatment of alcoholic employees could result in costly liability for these employers.
The better course in Circuits (such as the First Circuit) that require an individualized ADA assessment is to give the alcoholic employee the benefit of the doubt by granting the employee time off to attend treatment as a reasonable accommodation. An employer should only make adverse employment decisions based upon either a valid business justification, such as for disciplinary reasons, or based on an employee’s current use or abuse of alcohol.
In these circumstances, the employer can credibly argue that it has complied with the ADA and the adverse employment decisions will be legally justified, or will fall within the exception in the ADA that denies protection to current users of alcohol (and/or drugs) in the workplace.
FOOTNOTES:
1 Beth Hensley Orwick, “Bartender, I’ll Have a Beer and a Disability”; Alcoholism and the Americans With Disabilities Act: Affirming the Importance of Individualized Inquiry In Determining the Definition of Disability, 20 St. Louis U. Pub. L. Rev. 195, 201 (2001).
2 Bailey v. Georgia-Pacific Corp., 306 F.3d 1162 (1st 2002); Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997); Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299 (6th Cir. 2000); Miners v. Cargill Communication, Inc., 113 F.3d 820 (8th Cir. 1997); Nelson v. Williams Field Services, 216 F.3d 1088 (10th Cir 2000).
3 Turner v. Fleming Co., Inc., 173 F.3d 430 (6th Cir. 1999); Phillips v. Union Pac. R.R. Co., 216 F.3d 703 (8th Cir. 2000).
Robert P. Brooks is a partner in the Providence, R.I. office of Adler Pollock & Sheehan. He is chairman of the firm’s labor and employment law group. He represents management in all facets of labor relations and employment law in the public and private sectors.
