Can Alcoholics Be Terminated Under the ADA?

The question as to whether alcoholics are a protected class has once again come up. For you sports fans, you have probably heard that on October 12, 2015, USC fired its head football coach, Steve Sarkisian. Well he has filed a lawsuit against USC challenging his termination. His allegation is that USC violated state disability-discrimination laws by terminating him because of his disability and failing to accommodate his disability—alcoholism.

Now, keep in mind that the ADA protects alcoholism as a disability. On the other hand, there is a line to be drawn between protected addiction and unprotected on-the-job misconduct even when the former causes the latter. In other words, an employer may require an employee who acknowledges that he or she is an alcoholic to meet the same standards of performance and conduct as applied to other employees. They do not get a free pass.

As an example, an employer does not have to tolerate poor job performance or unsatisfactory behavior—such as absenteeism, tardiness, insubordination, or on-the-job accidents—related to an employee’s alcoholism if similar performance or conduct would not be acceptable for other employees. If the employee does violate any of these noted infractions, the employer can discipline the employee (please, always in writing) even if the conduct stems from alcoholism.

Although the ADA is a federal protection Sarkisian was a California employee so I feel compelled to add a caveat here. Under the California Labor Code if an employee acknowledges they have an addiction to drugs or alcohol, the employer would have to back away from a termination and advise the employee that they are eligible for a 30 day unpaid leave of absence to give them the opportunity to get into a rehab program. If the employer has an Employee Assistance Program through their insurance then that can be offered. If no, the employee would have to seek out a program of their choosing at their own expense. When the employee returns they need to be told that they have to comply with the terms of the program, they cannot violate any of the employer policies, they can be subject to random testing and, if they refuse to be tested, they can be subject to termination. Again, I will emphasize putting this in writing.

As a reminder, the employer may impose the same discipline that it would for any other employee who fails to meet its performance standard or who violates a uniformly-applied conduct rule. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for accommodation. An employee whose poor performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation, separate from any disciplinary action the employer chooses to impose and assuming the discipline for the infraction is not termination. If the employee only mentions the alcoholism but makes no request for accommodation, the employer may ask if the employee believes an accommodation would prevent further problems with performance or conduct. If the employee requests an accommodation, the employer should begin an “interactive process” to determine if an accommodation is needed to correct the problem. This discussion may include questions about the connection between the alcoholism and the performance or conduct problem. The employer should seek input from the employee on what accommodations may be needed and also may offer its own suggestions. Possible reasonable accommodations may include a modified work schedule to permit the employee to attend the on-going self-help program.

An additional example may help. This one is offered by the EEOC.

An employer has warned an employee several times about her tardiness. The next time the employee is tardy, the employer issues her a written warning stating one more late arrival will result in termination. The employee tells the employer that she is an alcoholic, her late arrivals are due to drinking on the previous night, and she recognizes that she needs treatment. The employer does not have to rescind the written warning and does not have to grant an accommodation that supports the employee’s drinking, such as a modified work schedule that allows her to arrive late in the morning due to the effects of drinking on the previous night. However, absent undue hardship, the employer must grant the employee’s request to take leave for the next month to enter a rehabilitation program.

The problem I see for USC is the timing of Sarkisian’s termination relative to his entrance into a treatment program. Sarkisian received the call that he was fired while on an airplane on his way to an alcohol treatment center. The day prior, his assistant coach pull him out of a game, believing he was drunk on the sidelines, and his boss announced that Sarkisian would be taking an indefinite leave of absence to enter treatment. Earlier in the season, Sarkisian apologized for apparent drunken behavior at a booster event and promised then to seek treatment. He also stated he would not drink for the remainder of the season. Those promises were not kept, leading to his termination. The key issue in this case is whether, given all of the evidence of misconduct, USC was justified in terminating Sarkisian even though it granted him leave to obtain treatment. This may be problematic under the ADA as well as under California Law. USC needs an explanation as to why it changed its mind from leave-for-treatment to termination. There is probably some behind the scenes issues that will eventually come out. We shall see.

 

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