By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 14: The Duty to Accommodate Alcoholism
This article is the 14th 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 14th 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.
There has been some conflict between the ADA, the Rehabilitation Act, and the state disability law concerning whether and how alcoholism can be accommodated. The Rehabilitation Act and the state law do seem to require some degree of accommodation, even when alcoholism produces on-duty job impacts. The ADA, by contrast, has been primarily interpreted not to require accommodation of alcoholism to the extent that it involves a violation of a work rule. The divergence in approaches arises from the different language in each statute.
Where the disability at issue involves alcoholism behaviors, the prevailing view of courts under the federal Rehabilitation Act is that the employer has an obligation to provide extensive opportunities for treatment, even to the point of accommodating short-term relapses which are anticipated to occur.
The seminal case defining an employer’s obligation to accommodate alcoholism is a Fourth Circuit decision — Rodgers v. Lehman,[1] The Ninth Circuit Court of Appeals has approved and adopted the stringent approach of the Fourth Circuit in its leading decision on this issue — Fuller v. Frank.[2] In Fuller, the Ninth Circuit defined the reasonable accommodation standards of Rogers as requiring “that a governmental employer follow a progression of increasingly severe responses to an employee’s alcoholism.”[3] Under this Rodgers/Fuller standard:
The employer should 1) inform the employee of available counseling services; 2) provide the employee with a “firm choice” between treatment and discipline; 3) afford an opportunity for outpatient treatment, with discipline for continued drinking or failures to participate; 4) afford an opportunity for inpatient treatment, if outpatient treatment fails; and 5) absent special circumstances, discharge the employee for any further relapse.[4]
While the law does not require the employer to tolerate an indefinite number of relapses, it does require the employer to acknowledge that certain relapses might occur and this, in turn, imposes upon the employer the duty to offer additional treatment opportunities.
Although, under federal law, alcoholism is clearly established as a “disability” (with primarily the extent of accommodation at controversy), the Washington State Supreme Court has held that whether alcoholism is a disability is a case-by-case question. In Phillips v. City of Seattle,[5] the court held that ultimately whether alcoholism is a qualifying “disability” is a question of fact for the jury to decide. Citing the varied nature of the alcoholic condition and the policy and medical disputes regarding the nature and cause of alcoholism, the court in Phillips concluded that the trier of fact should assess in a given case whether the individual alcohol condition constituted a legal disability.
The ADA also provides certain protection for alcoholics in certain circumstances, but more limited than that under state law or under the Federal Rehabilitation Act. The ADA expressly permits employers to “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, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.”[6] The meaning of this clause has been the source of on-going litigation.
Both the Rehabilitation Act and the ADA prohibit employers from disciplining employees because of their disability. The laws also require affirmative accommodation of alcoholism including multiple treatment opportunities. This much seems to be undisputed.
The policy of the Rehabilitation Act is aptly stated in Teahan v. Metro-North Commuter Railroad Co.:[7]
This section of the labor law [Section 504 of the Rehabilitation Act] aims to balance the statutory guarantee of equal opportunity for the handicap person so that he or she may become a contributing member of the work force against the rightful concern of an employer that is a recipient of federal funds to preserve the effectiveness of its programs. For an employer to assume that simply because of a handicap an individual is unable to function in a given employment context stereotypes that person, seeing him, as it were, through a glass, darkly. To view a handicapped person in such a simplistic way affects the discrimination forbidden by 504.[8]
At issue in Teahan was the termination of an employee who suffered from alcoholism from — which he had since been rehabilitated — after which had an extensive record of absenteeism. The employer had convinced the trial court that by terminating Teahan for absenteeism, it was not discriminating against him because of his disability, even though it conceded that the absenteeism was caused by the alcoholism. Teahan appealed.
The Second Circuit overturned the district court, holding that the employer’s argument would allow any employer to “rely” on any conduct as a manifestation or a symptom of a disability, and, in so doing, avoid the burden of proving that the disability is relevant to the job qualifications. The court explained:
An example may help illustrate this point. An employee has one leg shorter than the other, causing him to limp, which we assume is a “handicap” under Section 504. The limp causes the worker to make a loud “thump” when he takes a step. He is fired, his employer says, because of the thumping. Under the District Court’s analysis, the employee may not maintain a suit under Section 504 because the handicap is the limp, not the thump; hence the worker was not fired “solely by reason of” his handicap, but rather because of the attribute caused by the handicap. . . . Yet the proper analysis is that the causal connection between the limp (handicap and the thump, symptomatic manifestation of the handicap) is such that the employer did “rely” on the handicap.[9]
The Second Circuit’s reasoning in Teahan has been adopted by a number of other courts. For example, the Sixth Circuit approved this reasoning in another alcohol disability case in Ferby v. Runyon.[10]
Teahan was also cited in a controversial district court decision, within the Ninth Circuit, Ham v. Nevada.[11] Ham involved the ironic termination of Chief of the State of Nevada “Bureau of Alcohol and Drug Abuse” following a drunk driving arrest. The employer argued that they had terminated Ham for the crime of drunk driving, not his alcoholism.
The court rejected this argument and ordered Ham reinstated, reasoning that “since the drunk driving was a causally connected manifestation of the alleged handicap, defendant’s actions were admittedly based upon plaintiff’s alcoholism.” The court added: “Being fired for behavior caused by one’s affliction is the same thing as being fired for one’s affliction.” But other courts have interpreted the ADA and the Rehabilitation Act to allow employers to impose discipline for misconduct even if directly related to alcoholism.[12]
In the next article in this series, we’ll discuss how far the duty to accommodate the alcoholic employee extends.
[1] 869 F.2d 243 (4th Cir. 1989).
[2] 916 F.2d 558 (9th Cir. 1990).
[3] Id. at 562.
[4] Id.
[5] 111 Wn.2d 903, 766 P.2d 1099 (1989).
[6] ADA § 104(C)(4).
[7] 951 F.2d 511 (2d Cir. 1991).
[8] Id. at 513.
[9] 951 F.2d at 515-16.
[10] 1993 Lexis 20705 (6th Cir. 1993) (unpublished).
[11] 788 F. Supp. 455 (D. Nev. 1992).
[12] See, e.g., Randall v. Port of Portland, 8 AD Cases 1404 (1998) (citing Collings v. Tanguien Fibre Co., 73 F.3d 828 (9th Cir. 1993)).
