Diversity Insight

No Protection for Drinking On the Job

Question: One of the facilities we operate has a formal dining room and bar. One of our directors found a bartender drinking wine while on duty. We have a rule that drinking by employees isn’t allowed on the premises at all. We would like to fire her. If she tells us she has a drinking problem, would the termination violate her rights under the Americans with Disabilities Act (ADA)?

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Answer: It’s widely accepted that the ADA protects qualified individuals who suffer from alcoholism and meet the standards for establishing a disability. The Act, however, doesn’t protect employees from failing to comply with legitimate workplace rules.

Under the ADA, qualified employees are protected from discrimination if they are disabled, have a “record” of being disabled, are “regarded” as being disabled by the employer, or are “known to have a relationship or association” with another person who has a disability. “Disability” is defined as a “physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such impairment.” The definition would cover activities such as caring for yourself, performing manual tasks, seeing, hearing, sleeping, walking, communicating, thinking, and working. It also includes the operation of a major bodily function.

While an employee may have a history of alcoholism or suffer from the affliction, it doesn’t necessarily “substantially limit” a major life activity and may not qualify as a disability. Thus, the employee must show that the alcoholism meets the definition of disability under the ADA. If a qualified individual suffering from alcoholism can show that it substantially limits a major life activity, it qualifies as a disability, and the employer must determine whether a reasonable accommodation is needed to enable the employee to perform the essential job functions. The accommodations could include leave or an altered schedule to attend alcohol treatment programs. You are not required, however, to accommodate an employee’s intoxication or the adverse effects of excessive alcohol use.

The ADA makes it clear that you can require an employee who suffers from alcoholism or engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees. Thus, appropriately drafted policies on absenteeism, tardiness, on-the-job accidents, insubordination, and other forms of misconduct will apply even if the behavior is related to the employee’s alcoholism or illegal use of drugs. The only requirement is that the employee suffering from alcoholism or illegal drug use needs to be treated similarly as other employees who have or are engaging in the same unacceptable behavior.

To avoid potential lawsuits and liability, you should establish a workplace policy on alcohol use that addresses when and where it is permitted or prohibited. If alcohol consumption is permitted at certain work-related social or networking events, the policy should be drafted with language addressing overuse and/or employees’ inappropriate behavior. Policies also should include reasonable-suspicion testing for suspected drug and alcohol use. Many employers have adopted drug- and alcohol-free workplace policies. If you’ve adopted such a policy, follow it, provide appropriate training to your employees, and take appropriate action. If an employee voluntarily requests help, you will typically be responsible for providing an accommodation. If an employee doesn’t ask for help and is found to be in violation of your policy, termination is frequently appropriate.

In the present situation, it appears the employee was clearly observed consuming alcohol while performing her work duties—in violation of your company policy. There is nothing unusual in prohibiting that kind of behavior, which typically leads to termination. Provided other employees have been treated similarly, you should be free to fire the individual without violating the ADA or exposing your company to liability.

Reggie Gay is a Partner with Burr & Forman McNair LLP. He is also the editor of the South Carolina Employment Law Letter, may be contacted at rgay@mcnair.net.