HUT, HUT . . . TAKE A HIKE!

by Renee Mielnicki, Esq.   

football1Even though I’m really not a football fan, I sure enjoy the employment law lessons that the sport continues to teach us. In October of 2015, the University of Southern California (USC) fired Steve Sarkisian, its head football coach, after two incidents occurred that were allegedly connected to his alcohol use. The facts went something like this. In August 2015, Sarkisian was seen at a University-sponsored event slurring his speech and using profanity. It was reported that he later apologized for the incident and admitted that he was under the influence of alcohol and medication at the time. The straw that broke the camel’s back for USC is somewhat unclear to me. However, it was reported that USC suspected Sarkisian was under the influence during a game in September against Arizona State after which he was supposed to take a leave of absence. Shortly after the absence began, the University fired him. He has since filed a lawsuit against the University alleging, among other things, that the school discriminated against him on the basis of a disability (alcoholism).

The firing of Coach Sarkisian highlights the potential for lawsuits that can arise for employers when firing an employee who may have a problem with alcohol. Alcoholics can be considered disabled under the Americans with Disabilities Act (ADA). In addition, they can also qfootball3ualify as a person with a serious health condition under the Family Medical Leave Act (FMLA). Whether either or both is the case, an employer covered under these laws would be obligated to allow the employee to take a leave of absence to attend rehabilitation treatment in some circumstances. Sounds crazy, right? Well, the law is not completely unfair. It recognizes that employers are not powerless to enforce their workplace policies. Take employers with zero tolerance drug and alcohol policies. The ADA does not say that employees can ask for a leave to attend treatment for alcoholism after testing positive for alcohol just to avoid being fired. That would be pretty unfair and ripe for abuse by employees. But, what the law does say is if an employee who has not violated a company policy comes to their employer and asks for time off to attend a rehabilitation program, the employer (if covered by the law) would have to grant that request if the person is qualified for leave under one of these laws.

The ADA applies to any employer with 15 or more employees. An employee is qualified for leave as a reasonable accommodation under the ADA if they can show they are disabled as an alcoholic. FMLA applies to any employer who has 50 or more employees. An alcoholic could be eligible for FMLA leave as a person with a “serious health condition” if they have worked for the employer for 12 months, have worked 1,250 hours and work at a location where there are 50 employees in a 75 mile radius.

If an employee asks for leave to attend rehabilitation for the first time in response to a violation of a workplace drug and alcohol policy, or any other policy pertaining to misconduct, tfootball9he employer may impose the same discipline that it would for any other employee who violates the policy. If the normal disciplinary action is termination, the ADA would not require the employer to grant a leave to attend rehabilitation in lieu of termination. In other words, if the employer terminates all employees who test positive for alcohol after use is suspected, the ADA will not protect the employee claiming he is disabled under the ADA. Luckily, this law seems somewhat balanced as far as the rights of the employer versus those of the employee. Employees who have not committed misconduct can take time off to get the necessary treatment that they need. In turn, employers maintain the right to uniformly enforce policies pertaining to misconduct without allowing employees to use a “get out of jail free card” by claiming a disability. Asking for FMLA to take time off for treatment would work the same way.

Some employers choose to offer what is known as a “last chance agreement” to an employee who should otherwise be terminated for violating a drug and alcohol policy. This is not required under the ADA but can be done of an employer’s own free will. Last chance agreements are offered in exchange for an employee’s agreement to receive substance abuse treatment, refrain from further use of alcohol or drugs, and avoid further workplace problems. They often contain provisions that require the employee to test negative before returning to work and to undergo a series of random tests for a certain period of time after returning to work. If the employee violates the agreement in any way, termination is automatic. Unless your employee is covered by Department of Transportation (DOT) regulations where last chance agreements are required, I always counsel clients to carefully consider the implications of offering a last chance agreement. One rule in the employment world will always remain the same. Once you do it for one, you then have to do it for all or you open yourself up to claims of discrimination.

Two last small points about potential rights of alcoholics under the ADAfootball5 before getting back to Coach Sarkisian. Always remember that testing for alcohol is considered a medical exam under the ADA. In order to ask for a test, employers should be able to articulate facts that indicate the person is under the influence (“reasonable suspicion”). Random testing for alcohol should not be done, except when mandated for commercial drivers by the DOT. Lastly, poor performance that is tied to alcoholism may require the employer to engage in what is known as the interactive process under the ADA. The process is basically a conversation to determine if an accommodation (i.e. an exception to some workplace rule or policy) should be granted. The EEOC says that possible reasonable accommodations may include a modified work schedule to permit the employee to attend an on-going self-help program (i.e. the leave of absence issue again).

So, back to Coach Sarkisian. Employers are allowed to have uniformly enforced polices forbidding employees from working under the influence of drugs or alcohol. Employers are also permitted to have policies that require employees to meet their standards for attendance and conduct. Looks like the Coach may have broken some of those rules, huh? Fair enough to punish him then and hold him to the same standards as everyone else, regardless of whether or not he may have been an alcoholic. The issue that some of us employment law bloggers see is that the University allowed him time off and then fired him while he was on leave (and try like a day later). The Coach already filed a lawsuit against USC this month alleging disability discrimination and failing to reasonably football7accommodate his alcoholism. Why? Well, while I did not read the allegations contained within his lawsuit, I assume his argument is going to be that his leave was required and/or under the ADA or FMLA, and once he took it, they fired him for it. It will be interesting to see how this one shakes out since both sides will have an argument to make. The Coach could argue the University discriminated against him based on a disability by firing him while out on a protected leave. In counter, the University may argue that he was not an alcoholic and therefore not disabled under the ADA, but was rather allowed to take a personal leave pursuant to university policy.

If the details of the resolution of the case ever become publicly known, we will be sure to update our loyal blog followers and offer our ever-insightful analysis of the case and takeaways.

Takeaways so far can be summarized as follows:

  • Alcoholics can be disabled under the ADA which means employers may have to reasonably accommodate them, including allowing them a leave of absence.
  • Alcoholics may also qualify for leave under FMLA as a person with a serious health condition.
  • Once an employee raises alcoholism as a reason for poor performance or asks for a leave for treatment, employers need to engage in the interactive process with the employee to determine if an accommodation should be granted.
  • Employers can impose the same discipline on an employee mentioning alcoholism as it would on any other employee in response to misconduct or poor performance under a uniformly applied policy.
  • Employers do not have to offer last chance agreements to employees in lieu of termination for violating drug and alcohol policies.

If you have questions about offering reasonable accommodations or the ADA, drop us an email at HRHelpline@eastcoastrm.com. We would be happy to help.

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