By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 15: The Nature of the Duty to Accommodate an Alcoholic Employee
This article is the 15th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 15th article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
In the last article, we discuss whether there was a duty to accommodate the alcoholic employee. In this article we’ll discuss how far that duty extendss
The law requires employers to make “reasonable accommodations” of individuals with disabilities, and alcoholism is an established disability under federal law. But the duty to accommodate is not endless. In Rodgers v. Lehman,[1] the Fourth Circuit Court of Appeals set forth guidelines for determining when the employer has made a “reasonable accommodation” in connection with an alcoholic employee. Those standards — which have frequently been cited by other courts with approval — involve multiple steps and repeat opportunities:
- When the agency suspects that an employee’s poor performance results from alcoholism, it should inform the employee of available counseling services.
- If the employee’s unsatisfactory work performance continues, the agency must provide the employee with a “firm choice” between treatment and discipline. The agency must clearly unequivocally warn the employee that unsatisfactory work performance caused by drinking will result in discipline, eventually including the termination of employment.
- Unless in a particular case it is clear that an in-patient treatment is immediately required, the employee must be allowed to participate initially in out-patient treatment of sufficient duration to assure him a reasonable opportunity for cure.
- If the employee continues to drink while participating in that treatment, the agency may impose progressive discipline upon him for any resulting job-related misconduct.
- If the employee ceases to participate in or fails out-patient treatment, discharge is not automatic. Unless the agency can establish that it would suffer an undue hardship from the employee’s absence, the agency must, before discharging him, afford him an opportunity to participate in an in-patient program using accrued and unpaid leave.
- If the employee completes the program, but thereafter relapses, and thereafter fails to perform his job satisfactorily, a decision by the agency to discharge him will be presumed to be reasonable. Only in the rare case, such as where a recovering alcoholic has had a single relapse after a prolonged period of abstinence, can this presumption be rebutted.[2]
The court explained its reasoning for adopting such an elaborate system:
On the other hand, the nature of the disease of alcoholism requires that there be a continuum of treatment and that the alcoholic be allowed some opportunity for failure in order to come to the acceptance of his disease which is the critical element of his cure. On the other hand, both effective treatment and the needs of the workplace require that an alcoholic employee be firmly confronted with the consequences of his drinking.[3]
In Fuller v. Frank,[4] the Ninth Circuit Court of Appeals cited Rodgers v. Lehman with approval. The court also adopted as mandatory the multiple accommodation measures defined by the Fourth Circuit in Lehman. In Fuller, though, the Ninth Circuit concluded, that given the case the employer had more than complied with those steps, including repeated treatments and repeated leaves of absence, and even ultimately extending a “last chance” agreement. The court stated, “The postal service was not required to provide Fuller with another chance after giving him a ‘last chance.’ ”[5]
There is a competing set of ADA cases which hold, though, that if the employee engages in a violation of the work rule there is no duty to accommodate the individual. If, for example, a police officer incurs a DUI, he may not be entitled to accommodation, even though a direct result of alcoholism. That probable outcome is a result of the fact that the ADA does not require accommodation of work rule violations, and most police departments have a “work rule” which prohibits violation of criminal laws.
Such individuals, though, may have other protection under the Rehabilitation Act and the state disability discrimination law so the ADA would not be pled as a cause of action in a resultant lawsuit. The case law under those laws as to work rule violatons also continues to evolve so, like much of the disability law concerning alcoholism, predicting the exact outcome is difficult.
[1] 869 F.2d 253 (4th Cir. 1989).
[2] 869 F.2d at 259.
[3] Id.
[4] 916 F.2d 558 (9th Cir. 1990).
[5] Id. at 562.
