Difficult Disability Distinctions

The definition of what qualifies as a disability under the Americans with Disabilities Act (ADA) is not always clear — and alcoholism presents a particularly difficult issue.

Although the disease of alcoholism falls within the scope of the ADA, the actions of an employer toward an alcoholic don’t always violate the law.

Guidance from the EEOC    “While people with alcoholism may be individuals with disabilities, the ADA still allows employers to hold them to the same performance and conduct standards as all other employees, including rules prohibiting drinking on the job.     Example: An employer may fire an employee who is drinking alcohol while on the job if it has a uniformly applied rule prohibiting such conduct.    But there may be times when you may have to accommodate an employee with alcoholism. For example, an employer may have to modify a rule prohibiting personal phone calls at work for an employee with alcoholism who periodically has to contact his ‘AA sponsor,’ if the employee has a need to do so during work hours.”

One case that illustrates the complexity of the issue involves an employee who worked for Tootsie Roll Industries, Inc. An admitted alcoholic, the man was asked to take a daily Breathalyzer test. He sued the candy maker claiming he was discriminated against in violation of the ADA.

Facts of the case: Alex Nauseda was a maintenance supervisor for the candy maker’s factory in Chicago and was responsible for a crew of 14. He voluntarily entered an alcohol treatment program without notifying the company ahead of time. Before going into rehab, the company was unaware of any serious drinking problem. 

After Nauseda completed inpatient rehabilitation, he returned to his job, with the company’s support. Tootsie Roll’s policy prohibited drinking alcohol on the job and the employee was told that to continue working, he would have to submit to a daily Breathalyzer test. Nauseda and his boss also discussed the safety issues involved in being under the influence of alcohol while working around heavy machinery, as well as the need for a supervisor to set a good example.

For about two months, everything went well. Then, Nauseda tested positive for alcohol. He consumed a large quantity of alcohol one night and reported to work the next day with a blood alcohol level of 0.029. That is well below the legal limit for operating a motor vehicle, but the company fired him the next day.

In his lawsuit, Nauseda claimed the company failed to reasonably accommodate his disability. But Tootsie Roll Industries prevailed. The judge dismissed the employee’s suit noting:

• Tootsie Roll “strictly forbids” employees from reporting to work under the influence of alcohol and Nauseda violated the policy,
• The company was reasonable in requiring daily Breathalyzer tests because the employee was a supervisor and worked with heavy machinery. Others on the job could be placed in jeopardy by allowing someone under the influence of alcohol to continue working.
• “Alcoholism is very difficult to overcome and while Nauseda was up front with (the employer) and expressed an earnest desire to stop drinking, it was not unreasonable for (the employer) to need some additional assurance that he was truly reporting to work alcohol free,” the court stated. (Nauseda v. Tootsie Roll Industries, Inc., No. 02-C-2150, U.S. Dist. ND Ill., 2003)

This case is only one example of how the courts have handled alcoholism and the ADA. Here are two other cases that provide guidance:

Jailed alcoholic can be legally terminated. George Bailey worked as a paper handler for Georgia Pacific’s mill in Maine. He had a long history of alcohol abuse, but the court noted he was “generally able to fulfill his employment responsibilities” with a few exceptions. In one case, Bailey was sent home from work because his supervisor believed he had been drinking. This incident led Georgia-Pacific to place Bailey under a “last chance” agreement, which required him to attend counseling for alcohol abuse.

Seven months later, Bailey was incarcerated for four months after pleading guilty to operating a motor vehicle while intoxicated. He had used up all his available sick leave and vacation time before he went to jail.

The company sent him a letter, that read in part: “Employees are expected to be available for work as scheduled . . . Because you have not been and will not be available for work during your imprisonment, your employment is terminated for cause, effective today.” The employee sued under the ADA and state law but the district court ruled in favor of the employer.  (Bailey v. Georgia Pacific Corporation, 306 F.3d 1162, 1st Cir., 2002)

Alcoholism not found to impair an employee’s ability to work. John Sullivan worked as an assistant manager for Neiman Marcus in Boston. After complaints from colleagues that he drank alcohol at work, management searched his desk and found an empty vodka bottle. He was subsequently terminated. He sued under the ADA, claiming that Neiman Marcus failed to reasonably accommodate his disability and illegally discriminated against him. The retailer responded that Sullivan was fired because he consumed alcohol during the work day in violation of company rules — not because he was an alcoholic.

In order to establish a disability under the ADA, an employee must demonstrate that an impairment “substantially limits one or more major life activities,” such as standing, hearing or sleeping. Sullivan asserted that working was the major life activity that was limited by his alcoholism. The appeals court dismissed the case, stating that no evidence was presented to show that Sullivan’s alcoholism interfered with his ability to work. The court noted even if he could pass this hurdle, the ADA explicitly allows employers to hold alcoholic employees to the same standards that other employees are held to – even if unsatisfactory performance or behavior is related to alcoholism. (Sullivan v. Neiman Marcus Group Inc., 1st Cir. , No. 03-1606, 2004).

Important: The ADA prohibits discrimination against employees for their status as reformed alcoholics or former drug users. For example, you can’t refuse to hire a qualified applicant because he is an alcoholic. However, as these cases illustrate, the law does not protect employees who violate company policies, including those that prohibit alcohol or drug use while on the job.

For guidance on how to proceed with alcoholic employees, consult with your attorney.