By Eric B. Meyer
An alcoholic employee can present a number of tricky legal issues affecting the workplace.
Under the Americans with Disabilities Act, there’s a certain dichotomy. That is, alcoholism is a disability under the Act. However, an employer can ban alcohol in the workplace and require that employees not be under the influence of alcohol.
But what about an alcoholic employee, who, while remaining sober at work, seeks a leave of absence to treat?
You can’t fire an employee for requesting leave to treat for alcoholism.
This recent federal court opinion reminds us that this request for leave is a request for an ADA accommodation. (Whether it’s reasonable will depend on the specific facts and circumstances). Regardless, a request for an accommodation is a protected activity. Thus, if you were to fire an employee for making that request, that would be unlawful retaliation under the ADA.
Merely discussing treatment is a protected activity.
To request or not to request
But, let’s change the facts a bit: What if an employee informs his employer that he is an alcoholic and the company recommends that he seek treatment for alcoholism?
So, the employee never requests leave; rather, the employer broaches the subject. If the company later fires that employee, could the employee claim ADA retaliation?
For that to be the case, the foregoing set of facts would have to qualify as a protected activity. And according to the same federal court opinion, it probably does:
A request for leave to attend rehabilitation for alcohol dependency qualifies for ADA protection as a request for accommodation…Nothing in the ADA prescribes how the accommodation is requested. What the ADA does require, however, is that an employer reasonably accommodate the known disabilities of its employees. One such way an employer becomes aware of the need for an accommodation is being informed of an employee’s disability by the employee himself. That is what happened here. Thus, Adams’s admission to alcohol dependency may be construed as his request for accommodation. After all, Adams was not required to explicitly request accommodation in order for Persona’s duty to accommodate to be triggered. Thus, it follows that the admission by Adams itself was the request.”
Did the Court go too far?
I think the Court overstepped here. While there is no magic language required to seek accommodation of a disability, merely apprising the employer of a disability, without anything more, falls short of the line. That is, an employee must let the employer know that he needs an adjustment or change at work for a reason related to a medical condition.
For more information on addressing alcoholism under the ADA, check out this Q&A from the EEOC.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.