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ADA No "Bar" to Banning Alcohol in the Workplace

Winter 1995

Our Labor & Employment Practice Group would be happy to assist you with any questions relating to this article.

May an employer lawfully terminate the employment of an employee who violates its work rules by reporting to work under the influence of alcohol? Or, is an employer first required to "reasonably accommodate" the employee by offering the opportunity to participate in an alcohol treatment or other program? One court recently provided reassurance to employers inclined to respond to a violation of a ban on alcohol and drugs in the workplace by terminating the employment of those who violate such prohibitions.

This issue arises in the context of the complex and confusing dictates concerning drugs and alcohol in the Americans With Disabilities Act ("ADA"). On the one hand, the ADA protects from discrimination, and requires "reasonable accommodations" for, any "qualified individual with a disability." Such individuals are capable of performing the essential functions of a job, with or without reasonable accommodation, notwithstanding the existence of a disability. Because courts have not hesitated to interpret the predecessor to the ADA as treating alcoholism as a disability, most commentators correctly anticipated that alcoholic individuals who are capable of performing the essential functions of their job would be insulated from discrimination on account of their disability and due "reasonable accommodations" respecting their condition.

On the other hand, the ADA also clearly states that employers may prohibit employees from being under the influence of alcohol or engaged in illegal drug use while on the job. Focus on this provision of the ADA suggests that employers need not provide alcoholic or drug dependent employees with a second chance when they violate a company prohibition against being under the influence of alcohol or drugs at work.

In Flynn v. Raytheon Co., the United States District Court for the District of Massachusetts in 1994 considered these potentially conflicting provisions of the ADA. Raytheon had a published policy prohibiting employees from being under the influence of alcohol or drugs while on the job. The employee was confronted about a possible violation of that work rule and admitted that he was under the influence of alcohol. Notwithstanding its knowledge that the employee was alcoholic, the employer responded by terminating his employment.

The employee sued under the ADA. While acknowledging that alcoholism was a disability under the ADA, the court concluded that the Act's clear sanction of employer prohibitions against being under the influence of alcohol on the job evinced Congress' intent to permit employers to terminate the employment of an individual who violated such a work rule. Even the employee's claim that his violation was effectively due to a disability would not, in this court's view, entitle the employee to treatment, a second chance, or any other special consideration.

While this decision appears well supported, no Wisconsin court has yet definitively addressed the question of an employer's obligations to an alcoholic or drug dependent employee who violates drug and alcohol work rules. It is also unclear what difference, if any, there would be in the outcome if the employee had sought treatment prior to or in the course of being detected as someone violating the work rule. In any event, employers should proceed cautiously before terminating employees for alcohol or drug-related work rule violations to ensure that they, in fact, can establish the violation of such a work rule, and that the rules are enforced consistently with respect to all employees. Certainly, drug testing is one way of meeting this burden, if an appropriate drug testing plan has been previously published. Observations by trained employees are another, less intrusive, means for establishing the existence of a work rule violation.

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If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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