Is Alcoholism protected under the Americans with Disabilities Act?

March 30, 2015

Our office receives calls regarding whether or not alcoholics are protected under the Americans with Disabilities Act. Let’s clarify this.

Alcohol is legal, which means that it is generally recognized as the most abused of substances. Employers can prohibit its use in the workplace and can prohibit employees from coming to work under the influence. That’s the easy part.

Under the Americans with Disabilities Act, it’s more complicated. Alcohol is not an “illegal drug,” meaning that alcoholics who are “current users” do have some legal protections, but alcoholism is not as protected as, say, cancer.

It would violate the ADA for an employer to take action against an employee just because she was an alcoholic. (As an example, you wouldn’t want to fire the alcoholic employee for getting drunk at the office holiday party unless you fired everybody else who got drunk at the party, too.)

An employer may have to provide reasonable accommodations to an alcoholic employee, such as allowing time off for AA meetings or medical leave for the employee to enter a detox facility. (AA meeting time and detox time may also be covered under the Family and Medical Leave Act.)

On the other hand, it’s legal for the employer to take action against an employee whose alcohol abuse causes her to fail to meet attendance, performance, or behavior standards, even if the employee is an alcoholic. And there’s no duty to “accommodate” an alcoholic employee by letting her drink on the job or sleep at her desk because she’s too hung over to work.

If the employee just likes to drink and isn’t an alcoholic, then she’s not “disabled” within the meaning of the ADA and has no protection.

Unless another federal law says differently, workplace alcohol testing must be “cause”-based, as opposed to random or universal. It also can’t be done pre-offer. Although a drug test is not a “medical examination” within the meaning of the ADA, an alcohol test is. As a result, alcohol tests can be conducted (1) only post-offer or with current employees and (2) only if there is a job-related reason for the test.

NOTE: Some states also protect alcoholics and drug addicts IF they admit they are an alcoholic or drug addict. California, as but one example, requires an employer not to terminate the employee (if the situation requires it) and to put them on an unpaid leave of absence for 30 days for the purpose of getting into a program that will assist them. When they return the employer has a right to inform them that moving forward the employee must: 1. Comply with the program; 2. Adhere to all company policies; 3. Are subject to random testing; and 4. A refusal to be tested will be grounds for termination.

New Federal Guidelines on Social Media Policies

March 23, 2015

It’s been nearly two years since then-acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon issued his office’s guidance on social media policies under Section 7 of the NLRA. Last Wednesday, current NLRB General Counsel Richard Griffin issued a thirty page report on employer policies under Section 7 of the National Labor Relations Act (NLRA). Notably, the Board seems to be splitting hairs between what is a lawful policy and what is an unlawful policy. Consider the following (non) distinctions the NLRB is drawing: Confidentiality Unlawful: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].” – vs – Lawful: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.” Conduct Towards the Company and Supervisors Unlawful: “[B]e respectful to the company, other employees, customers, partners, and competitors.” – vs – Lawful: “No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company,” and “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.” Conduct Towards Fellow Employees Unlawful: “Do not send unwanted, offensive, or inappropriate emails.” – vs – Lawful: “No harassment,” and no “use of racial slurs, derogatory comments, or insults.” Interaction with Third Parties Unlawful: “Associates are not authorized to answer questions from the news media…. When approached for information, you should refer the person to [the Employer’s] Media Relations Department.” – vs – Lawful: “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry…. Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.’” Use of Company Logos, Copyrights, and Trademarks Unlawful: “Company logos and trademarks may not be used without written consent.” – vs – Lawful: “[I]t is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.” Restricting Photography and Recording Unlawful: Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.” – vs – Lawful: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.” Restricting Employees from Leaving Work Unlawful: “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited. – vs – Lawful: “Entering or leaving Company property without permission may result in discharge.” Conflict-of-Interest Unlawful: “Employees may not engage in any action that is not in the best interest of [the Employer].” – vs – Lawful: Employees must refrain “from any activity or having any financial interest that is inconsistent with the Company’s best interest” and also must refrain from ‘activities, investments or associations that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gains.” Regardless, this report confirms that employee handbooks and other workplace policies will continue to remain in the middle of the NLRB’s radar for the foreseeable future. If you haven’t recently updated your employee handbook and other policies, now would be a good time.

Employer FMLA Policy Did Not List One Eligibility Requirement-Court Found for the Employee!

March 16, 2015

By now, employers should be fully aware that to be eligible for FMLA leave the following three requirements must be met before an employee is eligible for the leave.

  1. The employee must be employed by a covered employer for 12 months.
  2. The employee must have worked 1,250 hours in the past 12 months.
  3. The employee must work at or within 75 miles of a worksite employing 50 or more employees (the “50/75 rule”).

What if the employer’s FMLA policy does not list one or more of these eligibility factors? According to one Federal Appeals Court, if an employee takes FMLA leave in reliance upon an incomplete list of FMLA eligibility requirements, that employee may be entitled to FMLA protection despite not actually being eligible under the law.

The Missing Eligibility Requirement in the FMLA Policy

The facts of the case involved an employee who had already received a final warning and was under a directive to deliver certain completed work assignment to his supervisor by August 1 or he might be terminated.

On the morning of August 1, the employee began experiencing what he felt were symptoms of a heart attack and he left work to seek medical treatment. He then returned home and had his wife call the employer to say that he would not be returning to work until August 5. He applied for FMLA leave but the employer denied it, stating that since he worked at a job site that did not meet the 50/75 rule, he was ineligible for FMLA leave. The employee was then terminated for failing to meet his August 1 work deadline.

The Court Eliminates the 50/75 Rule Eligibility Defense

The employee sued for interference with his FMLA rights. The employer countered, of course, the employee had no FMLA rights since he did not meet the 50/75 rule and therefore was ineligible for FMLA protection. The employee replied that the employer’s FMLA policy only listed the first two eligibility criteria set forth above and omitted the 50/75 rule. He thought he was covered by the policy when he took his leave, and had he known that he was not protected by FMLA, he would have returned to work to finish off the last few details of his assignment.

Though the court acknowledged that the employee was technically ineligible for FMLA, the absence of the 50/75 rule in the written policy prevented the employer from relying upon it to deny FMLA coverage. The appeals court reasoned that since the employee had no independent knowledge of the 50/75 rule, “a reasonable person” in the employee’s position could fairly have believed that he was protected by the FMLA” based on the FMLA policy as written. Therefore, fairness demanded that the employer be barred from using the 50/75 to deny the employees’ eligibility for FMLA and allowed the employee to pursue his FMLA claims despite not actually having met the legal requirements for FMLA protection.

Bottom Line

Check your policies to ensure the 50/75 requirement is there. More importantly, when an employee requests a leave of absence the employer should review the leave of absence policy and guidelines to ensure the employee understands it.

Note: The Podcast this week discusses office rumors! or go to iTunes and look for “Listen Up with Jim Potts”

New FMLA Guidelines Effective Immediately!

March 9, 2015

The US Department of Labor has now given a new definition of a “spouse” for FMLA purposes. Below is the memo they have issued.

Federal job-protected family and medical leave rights extended to eligible workers in same-sex marriages

US Labor Dept. updates Family and Medical Leave Act’s definition of spouse

WASHINGTON — Workers in legal, same-sex marriages, regardless of where they live, will now have the same rights as those in opposite-sex marriages to federal job-protected leave under the Family and Medical Leave Act to care for a spouse with a serious health condition. The U.S. Labor Department announced a rule change to the FMLA today in keeping with the U.S. Supreme Court ruling in United States v. Windsor. That ruling struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

“The basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one,” said U.S. Secretary of Labor Thomas E. Perez in announcing the rule change. “With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else. All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families — without the threat of job loss.”

Enacted in 1993, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA’s provisions became effective and even more American families will benefit as a result of the rule.

Today’s rule change updates the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.

For additional information on the FMLA, including information and fact sheets on the revisions, visit

New California Labor and Employment Laws for 2015

March 2, 2015

We were recently asked by a client to post all of the new laws that were effective January 1, 2015. As you can see from the list below it is very extensive. In the alternative, if you see a topic that is of interest to you, go to the internet and look it up by either the “AB” or “SB” number. Be sure to include the “AB” or “SB” before the appropriate number.

AB 1522 – Paid sick leave

AB 2536 – Expansion of “emergency rescue personnel” leave under Labor Code section 230.3

SB 1034 – California’s 60-day waiting period is repealed to conform with the Affordable Care Act’s 90-day waiting period

SB 1446 – Certain small employer healthcare plans may continue through 2015

AB 2053 – Employer harassment training must cover “abusive conduct”

AB 1443 – Unpaid interns and volunteers entitled to FEHA discrimination and harassment protections

AB 2751 – Definition of “unfair immigration-related practices” expanded

AB 1660 – Employers cannot discriminate against employees because of undocumented drivers licenses

AB 1792 – Protection from retaliation extended to employees enrolled in the Medi-Cal program

SB 1360 – Legally mandated rest and recovery periods, such as “cool down periods,” count as “hours worked”

AB 1897 – Expansion of employer liability to workers obtained from third-party labor contractors

AB 1723 – Waiting time penalties recoverable through Labor Commissioner citation

AB 2743 – Waiting time penalties recoverable by unionized, regular short-term theatrical employees

AB 2074 – Three-year statute of limitations to recover liquidated damages claim for failure to pay minimum wage

AB 1634 – Significant changes to abatement requirements during pending Cal-OSHA appeal

AB 326 – Employers may now use email (instead of telegraph) to report serious injuries to DOSH

AB 2617 – Employment arbitration agreements cannot waive certain civil rights claims

If you need any clarification of any of the above please feel free to contact us.