Karen Brown, a Lucky Stores Inc. supermarket checker, was arrested for drunk driving, possession of methamphetamines and being under the influence of illegal drugs. She missed two work shifts because she was in jail. The court then ordered her to enter a 90-day round-the-clock drug treatment program the next day, forcing her to miss a third shift.
Lucky fired Brown under a collective bargaining agreement provision authorizing the discharge of employees who miss three consecutive shifts. Brown sued, claiming state and federal disability discrimination laws protected her. But the Ninth Circuit Court of Appeals has now dismissed her case, finding that disability bias laws didn’t bar her termination. We’ll explain this new decision and outline the safest approach to take when you have employees with drug and alcohol problems.
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ADA Doesn’t Block Discipline For Misconduct
The court explained that although alcoholism is a protected disability under the Americans with Disabilities Act, you can terminate an alcoholic employee for violating work rules. This is true even if the misconduct was related to the employee’s alcoholism. Here, the court found that Lucky didn’t violate the ADA because it fired Brown under a neutral policy stating that an employee would be terminated for three consecutive unexcused absences.
Current Illegal Drug Use Not Protected
The court also found that a safe-harbor provision contained in the ADA didn’t apply to Brown. Although the disability law doesn’t protect an employee who is currently using illegal drugs, this provision makes an exception for employees who have been or currently are in a drug treatment program and are no longer using drugs. But according to the court, mere participation in a rehab program isn’t sufficient—the employee must also abstain from using illegal drugs long enough to demonstrate that drug use isn’t ongoing. Brown allegedly was using drugs when arrested, so the court found she hadn’t refrained from drug use for a sufficient length of time to qualify for the ADA safe-harbor protection.
No Accommodation Required
The court also rejected Brown’s argument that Lucky had to accommodate her disability by excusing her third absence when she was ordered into rehab. Although a leave of absence can be a reasonable accommodation, Brown never requested a leave. And Lucky didn’t have to offer an accommodation because there was no evidence that it knew or had reason to know at that point that Brown had a disability.
Handling Drug And Alcohol Problems
Although the employer prevailed in this case, state law and the ADA aren’t always consistent or clear about when you must accommodate employees with substance abuse problems. To avoid potential lawsuits, here are some steps to take before you fire someone who abuses alcohol or drugs:
- Offer counseling or rehabilitation. If possible, give the worker the opportunity to undergo counseling or rehabilitation before termination. In fact, if you have 25 or more employees, California law requires that you allow a worker to enter an alcohol or drug treatment program unless it would be an undue hardship on you. You only have to grant time off if the employee asks for it, but making the offer could help protect you from a claim that you refused to accommodate the person. Note that Brown tried to rely on this law in support of her case, but that the court didn’t consider it because of a technicality.
- Document performance problems. If an employee has performance or other disciplinary problems caused by alcohol or other substance abuse, make sure that you thoroughly document them. If you end up in a lawsuit, your documentation can be critical to show that the employee was terminated for poor performance or misconduct and not for alcoholism.
- Allow medical leave. If you have 50 or more workers, you may be required to grant the employee family leave of up to 12 weeks—but only for substance abuse treatment by a health care provider. The employee may also be entitled to disability leave under the ADA. However, absences because of an employee’s use of alcohol, rather than for treatment, don’t qualify for leave.
- Maintain privacy. Always keep confidential the fact that a worker has sought treatment for a drug or alcohol problem.