Consider an employer suddenly faced with the admission of an employee that he is an alcoholic. It would be reasonable for the employer to become concerned about that employee's ability to perform his job. That is especially true if the employee is in a safety-sensitive position, and the employer feels it can no longer depend on his work. This may not be an uncommon situation. But can the employee be terminated for that reason?
Compliance with the ADA
The first question an employer should ask is whether the employee is covered under the Americans with Disabilities Act (ADA), which prohibits employment discrimination against "qualified individuals with disabilities." If so, that employee may be entitled to leave in order to obtain treatment for his alcoholism.
An individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Though every situation is different, alcoholism is generally considered a protected disability.
As such, employees with alcoholism, like those with other chronic illnesses, cannot be discriminated against solely on the basis of that illness. In other words, an employer cannot terminate, demote, or deny medical leave or other benefits to an employee simply because he is (or is thought to be) an alcoholic. So, if other employees with chronic illnesses are allowed to take leave for treatment of their conditions, an alcoholic employee must also be allowed to take leave for that reason. Also, as with any other ADA-protected disability, the employer may be required to provide reasonable accommodations, such as a flexible work schedule or leave (paid or unpaid) to attend needed counseling and treatment.
Compliance with the FMLA
Another consideration is whether the employee is protected under the Family and Medical Leave Act (FMLA). The FMLA is a federal law that requires covered employers to provide employees with job-protected, unpaid leave for qualified medical and family reasons. If the employee is being treated by, or on referral from a healthcare provider, he may be protected by the FMLA. In that case, an eligible employee would be entitled to a maximum of 12 weeks of unpaid leave in a 12-month period in order to obtain treatment for his medical condition.
What can employers do?
If an employer decides it cannot continue to employ, what it sees as a high-risk employee, the employer may find a way to show that the employee is no longer a "qualified individual" under the ADA. An employer can still discipline or discharge an employee with a disability, if that disability impairs the employee's job performance to the extent he is no longer "qualified" to perform the essential functions of his job. In other words, an employer is still allowed to deal with any performance, conduct, or safety problem in the workplace and take appropriate disciplinary action.
If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.