Question: I've read news stories about former employees suing employers under the Americans with Disabilities Act for terminating their employment on account of them suffering from alcoholism. Does the ADA prohibit an employer from terminating an alcoholic employee if that employee has sub-standard performance?
Answer: No, the Americans with Disabilities Act allows an employer to terminate an employee for sub-standard performance, regardless of whether the employee claims to have an alcoholism disability. It is true that the ADA may protect a qualified employee whose alcoholism meets the ADA definition of "disability." However, the ADA specifically states that an employer may hold an alcoholic employee to the same conduct and performance standards that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the employee's alcoholism. 42 U.S.C. § 12114(c)(4).
Establishing an ADA Disability
In order to establish protection under the ADA, the employee must be "qualified" and meet the ADA's definition of "disability." First, to be "qualified," an employee must be able to perform the essential functions of his or her job, as determined by the employer, which may include arriving at work on time or attending required meetings. 42 U.S.C. § 12111(8). If an employee is unable to perform her essential functions, then she may not be "qualified" under the ADA.
Second, the ADA defines disability as having a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. 42 U.S.C. § 12102. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and bodily functions. Establishing alcoholism as substantially limiting a major life activity is a tough hurdle for an employee to overcome. Courts will evaluate alcoholism disability claims on a case by case basis due to the highly individualized nature of the claim.
If A Disability Is Established, What Actions Can Be Taken Against The Poor Performing Employee?
The ADA explicitly allows employees to enact workplace policies prohibiting employees from consuming or being under the influence of alcohol in the workplace (42 U.S.C. § 12114(c)(1) (2000). Additionally, regardless of whether the employee's alcoholism is considered a disability, the ADA allows an employer to terminate an employee who does not meet its common standards of performance. 42 U.S.C. § 12114(c)(4). The EEOC interprets this statute to mean that "poor job performance or unsatisfactory behavior -- such as absenteeism, tardiness, insubordination, or on-the-job accidents -- related to an employee's alcoholism . . . need not be tolerated if similar performance or conduct [by other employees] would not be acceptable," according to this EEOC Fact Sheet. Therefore, employees may not shield themselves from termination for sub-standard performance by alleging alcoholism.
While it is clear that an alcoholic employee may be terminated for sub-standard performance, it is important for employers to ensure that the employee who has alcoholism is treated similarly to the rest of the work force and is not being held to a higher standard as a result of the alcoholism. For example, an employer that does not enforce a punctual arrival policy cannot terminate an alcoholic employee whose tardiness is believed to be a result of alcoholism if other employees' tardiness is not similarly punished. Terminating the employee in this situation would lead to the conclusion that the employee was fired for being an alcoholic, which, depending on the circumstances, may be protected by the ADA.
What if the Employee Requests an Accommodation for an Alcoholism Disability?
As stated above, if an employee exhibits sub-standard performance or violates a workforce-wide policy that any other non-alcoholic/non-disabled employee would be terminated for, then the employer may terminate the alcoholic employee for the same offence without considering the employee's request for an accommodation.
However, this is not the case if the employer decides to take a disciplinary action less severe than terminating the employee. In such a situation, an employee who requests an accommodation may be entitled to one if the alcoholism meets the standards of a disability. In this case, the employer should work with the employee to discuss potential accommodations, such as a different work schedule to allow an employee to attend rehabilitation. However, the EEOC specifically states that an employer does not have to accommodate an alcoholic employee with "a modified work schedule that allows her to arrive late in the morning due to the effects of drinking on the previous night." Of course, as with any ADA disability, an employer is not required to provide a reasonable accommodation when it would cause an undue hardship to the employer.
Keisha-Ann G. Gray is a partner in Proskauer's labor and employment department, resident in the firm's New York office. Proskauer Associate Ian F. Plummer, resident in Proskauer's Newark office, assisted with this article.