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Alcoholism and ADA, FMLA Liability:What Employers Need to Know

by Brian Burbrink

According to the National Institute on Alcohol Abuse and Alcoholism, 17.6 million people — about one in 12 adults — abuse alcohol. Based on the statistics, odds are good that one or more of your employees suffers from alcoholism and may need treatment. The case illustrations below provide insight into avoiding liability under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) when managing alcoholics in the workplace.

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Case 1: Retaliation against a nondisabled alcoholic
Michael Burris was a territory sales manager who sold animal health medications for Novartis Animal Health. In 2004, he had his best sales year, but late in the year, his supervisor noted a drop in his sales and criticized his failure to meet administrative deadlines.

In early 2005, Burris’ new supervisor also was critical of his performance. That April, Burris informed his supervisor that he was an alcoholic and was entering an inpatient treatment program. Before his leave, he was purportedly second among seven sales representatives with respect to sales. When he returned to work about a month later, he was given a list of “30-day objectives,” followed by a midterm performance evaluation in which he received the lowest rating. Soon after, he was put on an onerous performance improvement plan (PIP), which served as a “final written warning.” When he fell short of PIP expectations, his employment was terminated.

Burris filed suit, claiming discrimination under the ADA and retaliation under the FMLA. The district court dismissed both claims without a trial, and Burris appealed.

Tenth Circuit’s decision. To establish an initial case of discrimination, Burris had to show that he was:

  1. disabled within the meaning of the ADA;
  2. otherwise qualified for the job he held, with or without reasonable accommodation; and
  3. discriminated against because of his disability.

The Tenth U.S. Circuit Court of Appeals noted that to be “disabled” under the ADA, Burris had to show that he was significantly restricted in performing or unable to perform a major life activity that an average person could perform. The court held that while alcoholism could qualify as a disability, Burris failed to demonstrate that his condition restricted a major life activity. He testified that he could function normally if he attended Alcoholics Anonymous (AA) meetings and that his alcoholism didn’t affect his ability to go to work and complete his job duties.

Ultimately, the only limitations he had were that he couldn’t drink, he had to attend AA meetings, and he had to avoid situations that might trigger a relapse. The Tenth Circuit held that those weren’t significant limitations on major life activities, and therefore, Burris’ ADA claim failed.

To establish an FMLA retaliation claim, Burris had to show that:

  1. he engaged in protected activity;
  2. his employer took action against him that a reasonable employee would find adverse; and
  3. there was a causal connection between the protected activity and the adverse action.

Burris argued that Novartis retaliated against him for exercising his right under the FMLA to take leave to treat his alcoholism. Novartis countered by arguing that it fired him for poor performance. The court found that before his FMLA leave, Burris’ performance was comparable to or better than a number of others on the sales team and that his leave adversely affected his sales numbers. The court also found that Novartis used his weak sales numbers to subject him to increasingly unrealistic job requirements.

The court concluded that a reasonable jury could find that Burris wasn’t fired for poor performance because the 30-day objectives, the poor midyear performance review, and the onerous PIP were “all part of a retaliatory course of action designed to drive [him] from the company following his return from leave.”

Thus, the court sent the case back to the district court for a jury trial on the FMLA retaliation claim. Burris v. Novartis Animal Health U.S., Inc. , 309 Fed. Appx. 241 (10th Cir., Jan. 27, 2009).

Americans with Disabilities (ADA) Compliance Manual

Case 2: Managing alcoholism and essential job functions
Bruce Vandenbroek worked as a boiler utility operator at PSEG Power Connecticut LLC. Among other things, he was responsible for monitoring boilers and responding to alarms. Because of the sensitive nature of the workplace, PSEG took a strict stance on attendance, and its rules provided that any employee who violated the “no call/no show” policy was subject to discharge for the first offense.

Vandenbroek was an alcoholic, and his condition required him to take FMLA leave for alcoholism treatment. Even after treatment, he admitted that “he didn’t know how to take control of his life.” Following his return from leave, he experienced attendance problems. The plant manager observed that when he did show up for work, he “was a good operator.” Ultimately, however, PSEG terminated him for erratic attendance.

Vandenbroek filed suit against PSEG, alleging that he was terminated for being an alcoholic and for taking medical leave in violation of the ADA and the FMLA. The district court dismissed both claims without a trial, and Vandenbroek appealed.

Second Circuit’s decision. The court held that Vandenbroek failed to show that PSEG violated the ADA when it fired him for alcoholism. Vandenbroek, like Burris, failed to make an initial disability discrimination case, but for a different reason — he wasn’t otherwise qualified to do his job, with or without an accommodation. The court concluded that “reliable attendance at scheduled shifts was an essential function of a boiler utility operator” to ensure against a power outage or explosion.

Even though Vandenbroek performed well when he showed up, he produced no evidence that PSEG could rely on him to appear for his shifts. Thus, no reasonable jury could conclude that he was qualified for the boiler utility operator position. Since it reached its conclusion on other grounds, the court didn’t decide whether his alcoholism was a qualifying disability under the ADA. It noted, however, that if his alcoholism impaired any of his major life activities, it limited his ability to work.

Vandenbroek also failed to produce sufficient evidence that his termination violated the FMLA because it followed his return from leave taken for alcoholism treatment. He argued that since PSEG previously rehired another alcoholic employee, a reasonable jury could conclude that he was fired in retaliation for taking FMLA-protected leave. The other employee’s situation, however, was unrelated to the “no call/no show” policy and therefore couldn’t support Vandenbroek’s inference.

Since a jury would have to engage in impermissible speculation to conclude that PSEG fired him in retaliation for taking FMLA leave, the Second Circuit ruled that his FMLA claim was properly dismissed without a trial. Vandenbroek v. PSEG Power CT LLC , No. 09-1109-cv (2nd Cir., Dec. 12, 2009).

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act

Bottom line
With respect to the ADA, these cases demonstrate two principles. First, there is no set formula for determining whether alcoholism is a qualifying disability. Second, despite their condition, you can hold alcoholics to the same qualifications and essential job functions as other employees. To minimize ADA liability, you should use the interactive process to ascertain how an employee’s alcoholism limits major life functions, beyond not being able to drink. Also, you would be wise to update job descriptions and employee handbooks to clearly outline essential job duties.

Regarding the FMLA, these cases illustrate that courts may or may not accept an employer’s business judgment for terminating an employee who takes FMLA leave to treat alcoholism. Liability exposure can be reduced through consistent application of policies for all employees and appropriate documentation. However, courts may view unfounded disparagement and impractical performance plans as pretext resulting in potential liability for retaliation.