Alcoholism and Drug Abuse Under the ADA

Employers face many challenges stemming from the fact that the Americans with Disabilities Act (ADA) protects alcoholic employees from discrimination, including, in some instances, requiring an employer to provide reasonable accommodations to the employee. The ADA also protects drug addicts, as long as the employee is no longer actively engaged in the use of illegal drugs.

The ADA's protection of alcoholics and recovered drug addicts raises questions about an employer's ability to respond to employees who have violated workplace rules prohibiting employees from being under the influence at work. For example, you have a long-term employee who came to work drunk in violation of your workplace rules. The employee states he is an alcoholic and requests a leave of absence to obtain treatment. Can you refuse to grant his request and terminate his employment without violating the ADA? Similarly, what if, rather than requesting an accommodation, the employee resigned and then, having undergone a successful 12-step program, seeks to be rehired? Can you lawfully refuse to rehire him based upon your neutrally applied policy of not rehiring employees terminated for violation of workplace rules?

Raytheon Provides Answers – Sort Of

The answer to the second question may shed light on the first. Employers had hoped that, in rendering its recent decision in Raytheon Co. v. Hernandez, 124 S.Ct. 513 (2003), the U.S. Supreme Court would rule on the legality of an employer's “no rehire” policy as applied to an alcoholic or drug-addicted employee who had been lawfully terminated for violating company policy. Unfortunately, despite the Court's decision, the question remains open.

In Raytheon, the Supreme Court addressed a situation involving a 25-year employee, Joel Hernandez, who, upon failing a drug test 2 years earlier, had been forced to resign from Raytheon rather than be fired. When Hernandez subsequently sought to be rehired, Raytheon refused to do so, citing its unwritten “no rehire” policy for employees whose employment had terminated as a result of a violation of workplace rules. The Ninth Circuit ruled that the no rehire policy impermissibly discriminated against formerly drug-addicted employees. Raytheon appealed the Ninth Circuit's decision.

In a 7-0 decision, the Supreme Court refused to rule on the primary question presented to it ' whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. In declining to reach that issue, the Court relied heavily upon the distinction between an ADA case that claims “disparate treatment” and one that is based on “disparate impact.” As the Court explained, “'[d]isparate treatment' … is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of the race, color, religion, sex, or [other protected characteristic]. Liability in a disparate treatment case 'depends on whether the protected trait … actually motivated the employer's decision.'” Raytheon at 519 (internal citations omitted). The Court noted that, by contrast, “disparate-impact claims 'involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.'” Id.

In this case, Hernandez argued that Raytheon's refusal to hire him constituted intentional discrimination and, in the alternative, that even if Raytheon did not intend to discriminate against him, its neutral no hire policy had a disparate impact on individuals with disabilities.

The Supreme Court noted that Hernandez had failed to timely pursue a disparate impact claim and thus, did not consider that theory on appeal. The Supreme Court considered only whether Raytheon's failure to rehire Hernandez constituted intentional discrimination. The Court held that, for a disparate treatment analysis, Raytheon's neutral no rehire policy (although not reduced to writing) was, by definition, a legitimate non-discriminatory reason for the refusal to rehire and, therefore, Raytheon's refusal to rehire the plaintiff did not violate the ADA.

Thus, provided employers apply their policies in a neutral, consistent fashion (eg, not treating alcoholic or formerly drug-addicted employees less favorably), they can take solace in the fact that they will not likely be found to have engaged in intentional discrimination if they refuse to rehire an employee under similar circumstances to those presented in Raytheon. By not reaching Hernandez' disparate impact claim, the Supreme Court did not dispose of the question but, rather, merely left it for another day. Until then, employers that follow neutrally-applied policies of not rehiring employees terminating for violating drug and alcohol policies must be mindful of the possibility that their policies will be challenged on the basis that they have a disparate impact on disabled employees.

Leave of Absence Required

With the Supreme Court's recent reminder of the importance of distinguishing between disparate impact and disparate treatment in mind, we consider whether, upon request, employers must provide alcoholic and/or drug-addicted employees with a leave of absence so they can obtain treatment. If the employee comes forward voluntarily (and not in response to a threat of termination due to a policy violation), the answer is a qualified “yes.”

The Equal Employment Opportunity Commission is of the opinion that a reasonable accommodation includes providing a leave of absence to an alcoholic employee under these circumstances. However, if it so chooses, the employer may still seek information from the employee establishing that his or her alcoholism rises to the level of a “disability” within the meaning of ADA law, including the requirement that the employee demonstrate that the condition substantially limits a major life activity. Following the Supreme Court's decision in Williams v. Toyota Mfg., 534 U.S. 184 (2002), this has become an increasingly difficult burden for employees under the ADA. The employer may also consider whether this employee's request would pose an undue hardship. Assuming the employee is disabled within the meaning of the ADA and the accommodation can be performed without undue hardship to the company, then the employer should provide the requested accommodation to an alcoholic employee. Because, however, the ADA does not extend its protection to current drug users, employers would not be required to accommodate an identical request from a drug user. With that said, employers should always check applicable state laws as they may provide greater protection than the ADA.

Whether an employer must honor a request for a leave of absence invoked only after the employee has committed a policy violation is less clear. In light of the Supreme Court's decision in Raytheon, it would seem that employers can feel confident that uniform application of a facially neutral policy of terminating employees who violate such a workplace rule would constitute a legitimate, non-discriminatory reason for terminating an alcoholic or drug-addicted employee. Thus, provided an employer has treated similarly situated employees in the same manner without regard to whether they are alcoholics or drug addicts, it should be able to successfully defend against a disparate treatment claim if it terminates the employee rather than grant the belated accommodation request.

On the other hand, in light of the issue left open in Raytheon, the employer may still face a disparate impact challenge. This puts the employer in a bit of a Catch-22. On the one hand, it faces a disparate treatment claim if it had not uniformly applied its policy of terminating employees who are under the influence at work. On the other hand, it faces a potential disparate impact claim (at least as to an alcoholic employee) if it applies this policy in a neutral fashion provided the employee can show that the application of this policy has a disproportionate impact on employees with disabilities.

Thus, in the wake of Raytheon, employers should revisit their policies and practices on being under the influence in the workplace and on rehiring employees terminated for policy violations, and make an informed decision about how they will proceed. Employers that have employed a “zero-tolerance” policy of terminating all employees who appear for work under the influence, including in the face of a belated request for accommodation, may decide to accept the risk of a disparate impact challenge at some later date and refuse to grant the request for a leave of absence.

Such a “one-size-fits-all” approach may not be satisfactory to some employers that, for example, want the discretion to provide a 20-year employee with an otherwise exemplary record the opportunity to seek treatment, while perhaps not providing the same opportunity to an employee still in a probationary period. The benefit of this case-by-case approach is that it decreases the likelihood of a disparate impact challenge. However, the obvious downside is the increased possibility of a disparate treatment challenge. Thus, great care must be taken to justify and document precisely how the employer arrived at its decision in each instance. Such explanation may be subject to review at some later date by a fact-finder.

One 'Last Chance'

An approach that has been looked upon favorably by some courts, although likely not required by the ADA, is one that, upon request, permits an employee who is found to be under the influence at work one opportunity to obtain treatment conditioned upon a clearly worded “last chance agreement” signed by the employee, pursuant to which the employee acknowledges that any further violations will result in termination of employment. In such an agreement, the employee generally agrees to provide documentation of his or her successful completion of the treatment program and, subject to applicable state law, permits the employer to conduct drug or alcohol testing upon return to employment. This is the approach that, in our view, is least likely to lead to an ADA claim ' either under a disparate treatment or disparate impact theory ' at a later date. If the employee refuses to sign a reasonable last chance agreement, the employer can feel quite confident about its decision to terminate. If the employee signs the agreement and successfully completes the treatment, perhaps there can be a happy ending for both the employer and the employee. If the employee's recovery is not successful, the employer can terminate him or her under the terms of the last chance agreement.

Employers face many challenges stemming from the fact that the Americans with Disabilities Act (ADA) protects alcoholic employees from discrimination, including, in some instances, requiring an employer to provide reasonable accommodations to the employee. The ADA also protects drug addicts, as long as the employee is no longer actively engaged in the use of illegal drugs.

The ADA's protection of alcoholics and recovered drug addicts raises questions about an employer's ability to respond to employees who have violated workplace rules prohibiting employees from being under the influence at work. For example, you have a long-term employee who came to work drunk in violation of your workplace rules. The employee states he is an alcoholic and requests a leave of absence to obtain treatment. Can you refuse to grant his request and terminate his employment without violating the ADA? Similarly, what if, rather than requesting an accommodation, the employee resigned and then, having undergone a successful 12-step program, seeks to be rehired? Can you lawfully refuse to rehire him based upon your neutrally applied policy of not rehiring employees terminated for violation of workplace rules?

Raytheon Provides Answers – Sort Of

The answer to the second question may shed light on the first. Employers had hoped that, in rendering its recent decision in Raytheon Co. v. Hernandez , 124 S.Ct. 513 (2003), the U.S. Supreme Court would rule on the legality of an employer's “no rehire” policy as applied to an alcoholic or drug-addicted employee who had been lawfully terminated for violating company policy. Unfortunately, despite the Court's decision, the question remains open.

In Raytheon, the Supreme Court addressed a situation involving a 25-year employee, Joel Hernandez, who, upon failing a drug test 2 years earlier, had been forced to resign from Raytheon rather than be fired. When Hernandez subsequently sought to be rehired, Raytheon refused to do so, citing its unwritten “no rehire” policy for employees whose employment had terminated as a result of a violation of workplace rules. The Ninth Circuit ruled that the no rehire policy impermissibly discriminated against formerly drug-addicted employees. Raytheon appealed the Ninth Circuit's decision.

In a 7-0 decision, the Supreme Court refused to rule on the primary question presented to it ' whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. In declining to reach that issue, the Court relied heavily upon the distinction between an ADA case that claims “disparate treatment” and one that is based on “disparate impact.” As the Court explained, “'[d]isparate treatment' … is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of the race, color, religion, sex, or [other protected characteristic]. Liability in a disparate treatment case 'depends on whether the protected trait … actually motivated the employer's decision.'” Raytheon at 519 (internal citations omitted). The Court noted that, by contrast, “disparate-impact claims 'involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.'” Id.

In this case, Hernandez argued that Raytheon's refusal to hire him constituted intentional discrimination and, in the alternative, that even if Raytheon did not intend to discriminate against him, its neutral no hire policy had a disparate impact on individuals with disabilities.

The Supreme Court noted that Hernandez had failed to timely pursue a disparate impact claim and thus, did not consider that theory on appeal. The Supreme Court considered only whether Raytheon's failure to rehire Hernandez constituted intentional discrimination. The Court held that, for a disparate treatment analysis, Raytheon's neutral no rehire policy (although not reduced to writing) was, by definition, a legitimate non-discriminatory reason for the refusal to rehire and, therefore, Raytheon's refusal to rehire the plaintiff did not violate the ADA.

Thus, provided employers apply their policies in a neutral, consistent fashion (eg, not treating alcoholic or formerly drug-addicted employees less favorably), they can take solace in the fact that they will not likely be found to have engaged in intentional discrimination if they refuse to rehire an employee under similar circumstances to those presented in Raytheon. By not reaching Hernandez' disparate impact claim, the Supreme Court did not dispose of the question but, rather, merely left it for another day. Until then, employers that follow neutrally-applied policies of not rehiring employees terminating for violating drug and alcohol policies must be mindful of the possibility that their policies will be challenged on the basis that they have a disparate impact on disabled employees.

Leave of Absence Required

With the Supreme Court's recent reminder of the importance of distinguishing between disparate impact and disparate treatment in mind, we consider whether, upon request, employers must provide alcoholic and/or drug-addicted employees with a leave of absence so they can obtain treatment. If the employee comes forward voluntarily (and not in response to a threat of termination due to a policy violation), the answer is a qualified “yes.”

The Equal Employment Opportunity Commission is of the opinion that a reasonable accommodation includes providing a leave of absence to an alcoholic employee under these circumstances. However, if it so chooses, the employer may still seek information from the employee establishing that his or her alcoholism rises to the level of a “disability” within the meaning of ADA law, including the requirement that the employee demonstrate that the condition substantially limits a major life activity. Following the Supreme Court's decision in Williams v. Toyota Mfg., 534 U.S. 184 (2002), this has become an increasingly difficult burden for employees under the ADA. The employer may also consider whether this employee's request would pose an undue hardship. Assuming the employee is disabled within the meaning of the ADA and the accommodation can be performed without undue hardship to the company, then the employer should provide the requested accommodation to an alcoholic employee. Because, however, the ADA does not extend its protection to current drug users, employers would not be required to accommodate an identical request from a drug user. With that said, employers should always check applicable state laws as they may provide greater protection than the ADA.

Whether an employer must honor a request for a leave of absence invoked only after the employee has committed a policy violation is less clear. In light of the Supreme Court's decision in Raytheon, it would seem that employers can feel confident that uniform application of a facially neutral policy of terminating employees who violate such a workplace rule would constitute a legitimate, non-discriminatory reason for terminating an alcoholic or drug-addicted employee. Thus, provided an employer has treated similarly situated employees in the same manner without regard to whether they are alcoholics or drug addicts, it should be able to successfully defend against a disparate treatment claim if it terminates the employee rather than grant the belated accommodation request.

On the other hand, in light of the issue left open in Raytheon, the employer may still face a disparate impact challenge. This puts the employer in a bit of a Catch-22. On the one hand, it faces a disparate treatment claim if it had not uniformly applied its policy of terminating employees who are under the influence at work. On the other hand, it faces a potential disparate impact claim (at least as to an alcoholic employee) if it applies this policy in a neutral fashion provided the employee can show that the application of this policy has a disproportionate impact on employees with disabilities.

Thus, in the wake of Raytheon, employers should revisit their policies and practices on being under the influence in the workplace and on rehiring employees terminated for policy violations, and make an informed decision about how they will proceed. Employers that have employed a “zero-tolerance” policy of terminating all employees who appear for work under the influence, including in the face of a belated request for accommodation, may decide to accept the risk of a disparate impact challenge at some later date and refuse to grant the request for a leave of absence.

Such a “one-size-fits-all” approach may not be satisfactory to some employers that, for example, want the discretion to provide a 20-year employee with an otherwise exemplary record the opportunity to seek treatment, while perhaps not providing the same opportunity to an employee still in a probationary period. The benefit of this case-by-case approach is that it decreases the likelihood of a disparate impact challenge. However, the obvious downside is the increased possibility of a disparate treatment challenge. Thus, great care must be taken to justify and document precisely how the employer arrived at its decision in each instance. Such explanation may be subject to review at some later date by a fact-finder.

One 'Last Chance'

An approach that has been looked upon favorably by some courts, although likely not required by the ADA, is one that, upon request, permits an employee who is found to be under the influence at work one opportunity to obtain treatment conditioned upon a clearly worded “last chance agreement” signed by the employee, pursuant to which the employee acknowledges that any further violations will result in termination of employment. In such an agreement, the employee generally agrees to provide documentation of his or her successful completion of the treatment program and, subject to applicable state law, permits the employer to conduct drug or alcohol testing upon return to employment. This is the approach that, in our view, is least likely to lead to an ADA claim ' either under a disparate treatment or disparate impact theory ' at a later date. If the employee refuses to sign a reasonable last chance agreement, the employer can feel quite confident about its decision to terminate. If the employee signs the agreement and successfully completes the treatment, perhaps there can be a happy ending for both the employer and the employee. If the employee's recovery is not successful, the employer can terminate him or her under the terms of the last chance agreement.