Working Under The Influence: No Protection Under FMLA Or ADA


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

With the Family Medical Leave Act and the Americans with Disabilities Act looming in the background, appropriate handling of an alcoholic employee who is potentially under the influence in the workplace presents a major concern. In a recent federal court decision, an employee was terminated, then claimed protection under the FMLA and the ADA. The employer’s response was upheld by the Court.

The plaintiff in Ames v. Home Depot, Inc., had been employed for almost five years without any performance problems. She then told her store manager she had an alcohol problem and needed assistance through the store’s Employee Assistance Program. She enrolled in the EAP program, and signed an agreement that she would be subject to periodic drug and/or alcohol testing during the remainder of her employment.

About a month after completing the assistance program, she arrived for her scheduled shift, but was reported to be less responsive to conversation than normal, slurring her words, and smelling of alcohol. She tested positive for alcohol, and the decision was made to terminate her. However, before that could be announced, the plaintiff checked herself into a hospital for one day.

After her termination, she sued for violations of the FMLA and the ADA. The Court concluded that she couldn’t establish that her substance abuse was a condition requiring “continued treatment by healthcare provider” so as to invoke FMLA protections. The concept of “continuing treatment” under the FMLA must involve a period of incapacity of more than three consecutive calendar days. There was nothing in the record showing that, on the day of her termination, she had a condition requiring that level of continued treatment. In fact, she testified in her deposition that her alcohol use neither incapacitated her nor affected her work performance.

Similarly, the Court concluded that there was nothing in the record to show that her alcoholism was an ADA covered disability, substantially limiting her major life activities. Moreover, the Court noted that her claims of ADA discrimination and failure to accommodate both failed because the record established that Home Depot fired her because she came to work under the influence of alcohol in violation of company practices. It noted that the ADA specifically provides that an employer need not accommodate an alcoholic by overlooking such violations of workplace rules.

The decision in Ames illustrates the importance of returning to the basics of FMLA and ADA coverage as the first step in evaluating whether a medical condition may be involved in events leading to an employee’s discipline or termination. Here, the employee’s own testimony undercut her allegations under either federal act. The analysis by the Court provides something of a road map for dealing with situations involving alcohol and/or drugs in the workplace.

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