Elizabeth A. Semler
503.243.1661 x 264
 

Employment eAlert: Employees with a Drinking Problem - Are they Protected by the ADA and/or FMLA/OFLA?

April 2011

Elizabeth A. Semler
503.243.1661 x 264
Many employers have "zero tolerance" policies in their handbooks that prohibit the use of alcohol and drugs by employees at work. Employers may also have policies that permit them to test employees for alcohol or drugs under various circumstances, e.g., a work- related accident or on reasonable suspicion. When an employee violates the "zero tolerance" policy or tests positive for alcohol, employers typically want to terminate the offending employee, and a properly-drafted policy should provide for that level of discipline. Sometimes, however, an employee will seek to avoid termination by asserting that they are disabled or are entitled to medical leave for treatment.

Alcoholism can be a disability under the Americans with Disabilities Act and Oregon's equivalent statute if it substantially limits one or more major life activities of the employee. Employees who attribute performance problems to alcoholism, and thus assert they are disabled, may seek accommodation of their disability via a leave of absence for treatment or a part-time or reduced schedule to allow them to attend meetings and treatment-related appointments. While alcoholism, like any other disability, will not excuse poor performance, attendance problems, or other substantive performance deficiencies, and the ADA permits employers to prohibit alcohol-related misconduct in the workplace, employers need to carefully consider termination decisions where employees assert that they suffer from alcoholism and attribute performance issues to their disability.

Similarly, alcoholism can constitute a "serious health condition" under the FMLA and OFLA, and an employee may take FMLA/OFLA leave to enter a treatment program or take intermittent leave to receive treatment. Note, however, only leave for treatment is covered; the FMLA and OFLA do not provide leave for absences that result from alcohol use or abuse. Further, unlike the ADA, which allows an employer to reject an accommodation if it is unduly burdensome, hardship on an employer is not a basis to deny FMLA/OFLA leave.

If you would like assistance in monitoring and complying with the ADA, FMLA, or OFLA, or have questions about other employment law issues, please feel free to contact us.

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