By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 20: Disability Law and Alcohol Related Misconduct
This article is the 20th 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 several weeks and continuing for the next several weeks, 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 are addressed in detail in our newest book: 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 20th article in these newsletter series provides a discussion concerning disability rights relating to discharges under the CBA which involve an element of misconduct. 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.
Addiction-related behaviors, even where arbitrators did not apply the standard under disability discrimination statutes, have sometimes been recognized to be mitigating factors justifying reinstatement. In Ohio State Highway Patrol, [70] the arbitrator reinstated a state trooper who was convicted of a drunk driving charge where the trooper was making successful progress in an alcohol treatment program. While the arbitrator acknowledged that law enforcement personnel are held to a higher standard, she concluded that the employer had failed to give the employee’s effort at rehabilitation the weight it deserved as “distinctive and crucial mitigating factors.”[71] In Phillips 66 Company, [72] the arbitrator held that the grievant’s gambling addicting which resulted in excessive absenteeism constituted a mitigating factor warranting reinstatement.
Addiction-related behaviors, even where arbitrators did not apply the standard under disability discrimination statutes, have sometimes been recognized to be mitigating factors justifying reinstatement.
The question of how far employers must go to accommodate disabilities, including addictions such as alcoholism, was discussed in greater extent previously in this series. The main point to bear in mind is that those Chapter previously discussed principles can apply if an employee is being separated for reasons that might violate state or federal disability discrimination laws.
These laws offer employees extensive protection if they are diagnosed alcoholics and seeking treatment. Arbitrators usually find the “just cause” standard incorporates these legal requirements. Employees who are not alcoholics often have less protection for alcohol-related misconduct. And even employees who are alcoholics are not insulated from behavior that violates work rules. Though courts and arbitrators are divided on this point, most have held that disability discrimination laws do not require an accommodation that permits the violation of a reasonable work rule.
Disability discrimination laws offer little or no protection for employees who are current substance abusers of illegal narcotics. Therefore, those employees are not entitled to any accommodation, especially when they work in a law enforcement department.
Arbitrators will generally find these disability laws implied into the just cause standard. Often contracts also explicitly incorporate these provisions through an anti-discrimination clause. Even prior to the enactment of disability discrimination laws, the majority view of arbitrators which has developed is that alcoholics who are in recovery and treatment are entitled to some opportunity to demonstrate rehabilitation.
Where an employee engages in conduct that is alcohol-related, yet is not a diagnosed alcoholic, separate and apart from the “just cause” requirements, such an employee has no particular protection under disability laws. Experience indicates that this dichotomy under the law for those who declare their status as alcoholics and those that deny they are alcoholics — once clearly explained to employees caught in the cross-hairs of an alcohol-related misconduct investigation — is the most forceful inducement known to trigger a trip to rehabilitation, often overcoming years of denial.
Some employers have rules prohibiting off-duty public intoxication. It is questionable whether most arbitrators would find such rules to be reasonable or lawful, except to the extent there is a demonstrable impact on fitness for duty. But employees who engage in criminal conduct or other conduct rising to the level of “conduct unbecoming an officer” while intoxicated, as discussed above, may face serious discipline.
Separate from nondiscrimination statutes, most arbitrators have interpreted the just cause standard as an independent source of legal protection for recovering alcoholics. Even before disability discrimination laws were enacted, arbitrators had developed guidelines addressing the extent of accommodation required for the recovering alcoholic employee. There is no single consensus position on this controversial subject. One observer identified three distinct arbitral approaches to alcoholism:
1. Hold all employees to the same standards of conduct, without regard to the nature or severity of their substance abuse problems or their efforts to seek assistance.
2. Give special consideration to employees who have acknowledged to the employer that they have a substance abuse problem, and who actively seek help in resolving the problem before discharge.
3. Treat substance abuse as a “disease,” and accommodate it like other diseases.[73]
The first hard line approach is a distinctly minority view. Most arbitrators approach alcohol problems with some blend of the second and third approaches. And this tendency to give treatment opportunities has accelerated in light of disability laws.
In Phillip Morris, [74] Arbitrator Volz set out five common sense principles that should be considered in handling alcoholism in the context of discipline. These provide a good framework for understanding how most arbitrators will treat this issue:
• First, progressive discipline is ineffective in improving employee reliability until the employee recognizes that he is an alcoholic.
• Second, an alcoholic will usually not recognize the disease until faced with a crisis such as termination.
• Third, post-discharge evidence is relevant and admissible in alcohol-related arbitrations to show the extent of the alcoholic’s rehabilitation.
• Fourth, in assessing rehabilitation, the arbitrator should consider more than the alcoholic’s word.
• Fifth, a return to employment is often part of the treatment, during which time the employer can determine the employee’s progress through monitoring, attitude and adjustment to work.
As indicated, Chapter 1 contains an extensive discussion about how alcoholism is accommodated under disability discrimination laws. Because arbitrators generally find these legal standards implied into CBAs, the principles laid out in that discussion should be understood to integrate with the five principles described above by Arbitrator Volz.
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[70] 96 L.A. 613 (Bittel, 1991).
[71] 96 L.A. at 619; see also, Ashland Petroleum Co., 90 L.A. 681 (Volz, 1988) (reinstating employee who participated in rehabilitation program for drug use after the discharge; arbitrator noting that addictive behaviors involve denials which are often only overcome in “crisis situation”).
[72] 88 L.A. 617 (Weisbrod, 1987).
[73] Bornstein & Gosline, supra, at § 18.10.
[74] 99 LA 1017 (Volz, 1992).
