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.