While alcoholism has long been considered an impairment, plaintiffs have had limited success establishing that alcoholism is a protected disability under the Americans with Disabilities Act (“ADA”). However, the Americans with Disabilities Amendments Act (“ADAAA”) significantly expanded the number of protected individuals under the Act. Instead of focusing on whether an individual qualifies as “disabled,” the new focus has been on whether the employer made a reasonable accommodation and, if not, whether the employer can demonstrate undue hardship. A recent decision, E.E.O.C. v. Old Dominion Freight Line, Inc., further illustrates the need for an interactive process.
In E.E.O.C. v. Old Dominion Freight Line, Inc., the plaintiff was a commercial truck driver who, for five years, drove without any major incidents. In June 2009, the plaintiff informed his superior that he thought he was an alcoholic and he was going to an Alcoholics Anonymous (“AA”) meeting. Word of the plaintiff’s self-reported diagnosis traveled up the employer’s chain of command until the regional vice president removed the plaintiff from his driving position and required him to undergo evaluation and treatment before he was allowed to return to work. Based on its “no-return” policy, the employer would not permit the plaintiff to return to a driving position and informed him that the only available non-driving position was as a part-time dock worker. Plaintiff’s insurance only covered 60% of the treatment cost, and he could not afford the other 40%. Because treatment was a condition of continued employment, the plaintiff was terminated. The Equal Employment Opportunity Commission (“EEOC”) filed suit under the ADA on behalf of plaintiff.
The court agreed that the employer did not violate the ADA when, for safety justifications, it required the plaintiff to undergo evaluation and treatment before returning as a commercial driver. However, the court was not persuaded that the employer provided a reasonable accommodation to the plaintiff. The employer contended it made a policy decision as a matter of business necessity and public safety by prohibiting alcoholic drivers from returning to driving. The evaluation and treatment process for alcoholics would serve a business necessity of not having an alcoholic drive a commercial vehicle, but it was not served in this case because there was no opportunity for an evaluated and treated alcoholic to return to his position. The court ultimately concluded that the employer’s blanket “no-return” policy violated the ADA.
Alcoholism and the ADA
Although some state disability civil rights statutes explicitly exclude alcoholism as a disability, a person who currently uses alcohol is not automatically denied protection under the ADA. The question of whether alcohol addiction is a disability is an individualized inquiry. Further, since the primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the Act, Congress has made it clear that the ADAAA’s definition of “disability” must be broadly construed. Again, the focus should be an individualized inquiry and the interactive process.
Employers may still discipline, discharge and/or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. Employers may also prohibit alcohol use in the workplace and require that employees not be under the influence of alcohol while working. Employers may also continue to test employees for on-duty impairment by alcohol and remove those employees who test positive. It was not discipline that got the employer in trouble in this case, it was the no-exceptions, “no-return” policy.
Lesson for Employers
It is too soon to determine what effect, if any, the Old Dominion decision will have in other jurisdictions. However, it is clear that the EEOC intends to challenge blanket policies, and certain courts are sympathetic to challengers of these type of policies. This decision does not affect an employer’s right to terminate an employee for operating under the influence or consuming alcohol in the workplace. It is important to remember that each case is different and an individualized inquiry is necessary to identify and balance the competing concerns. It’s also prudent to consult your employment counsel when analyzing these types of decisions and/or accommodations.
If you have any questions please contact Larry Jensen at ljensen@wp.hallrender.com or your regular Hall Render attorney.
