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By: Tim Holdsworth
Last week, the University of Southern California fired their head football coach, Steve Sarkisian, for attending a practice under the influence of alcohol. This was purportedly not the first time that Sarkisian’s drinking affected his coaching duties. In light of such a high-profile situation, it’s a good time for employers to review how the Americans with Disabilities Act and Family and Medical Leave Act treat use of alcohol and illegal drugs, and ensure they are implementing best practices to deal with such circumstances.
Under the ADA, alcoholism can be a disability and an employee could be entitled to a reasonable accommodation if he or she is (1) seeking treatment for their addiction, and (2) not currently abusing alcohol. But the ADA does not protect an employee’s misconduct due to their use of alcohol. As to illegal drugs, an employer could terminate an employee who currently uses illegal drugs on that basis, but a former user could be a qualified individual under the ADA if he or she is currently participating in or has completed a drug rehabilitation program. The ADA also provides that an employer “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees.” 42 U.S.C. § 12114.
Under the FMLA, if alcohol or illegal drug addiction constitutes a “serious health condition,” as defined by the statute, an employee could qualify to take FMLA leave for treatment of the abuse by or on the referral of a healthcare provider. But the FMLA might not cover absences due to use of the substance, rather than for treatment. Additionally, even when an employee is currently exercising their right to take FMLA leave for treatment, an employer could potentially terminate that employee for misconduct related to use of alcohol or illegal drugs if the employer has a substance abuse policy that (1) is applied in a non-discriminatory manner and (2) has been communicated to all employees. An employee could also qualify to take FMLA leave to care for a covered family member receiving treatment for substance abuse.
Employers can take several affirmative steps to effectively handle situations involving employees with alcohol or illegal drug addiction:
Employers should also remember that the ADA and FMLA can overlap in these situations. For example, an employee who has exhausted their twelve weeks of leave under the FMLA to attend rehabilitation may be entitled to an extended period of leave as a reasonable accommodation under the ADA.
Since this area of law is continuously evolving, feel free to contact counsel at Freeman Mathis & Gary if you have any questions or would like further guidance on these issues.