Many employers turn a blind eye to employees who are suspected of abusing alcohol, even when it may interfere with work performance. Each employee situation is unique. The lack of clear legal guidelines adds difficulty and often results in managerial abstention.
Alcoholism, or alcohol dependence is a disease. Its symptoms include craving; the inability to limit one’s drinking; physical dependence identified by withdrawal symptoms; and tolerance, requiring greater quantity to feel satiated.



The Americans with Disabilities Act Amendments Act (ADAAA) defines a person with a disability as having a physical or mental impairment that substantially limits one or more life activities, a record of such impairment or is regarded as having an impairment. Employers with at least 15 employees must comply with the ADAAA. The ADAAA protects applicants and employees with disabilities from discrimination, provided they satisfy the job-related requirements and can fulfill the essential functions of the position with or without an accommodation.



The Equal Employment Opportunity Commission (EEOC) recognized alcoholism as a disability under the Americans with Disabilities Act in August, 2011. Old Dominion Freight Line, Inc. had a policy that reassigns drivers to non-driving positions after self-reporting alcoholism or enrolling in alcohol treatment programs. The company banned employees from ever driving again, even after successful completion of treatment. The company was found to be in violation of the ADA and ADAAA. EEOC stated an employer can ensure safety and ADA compliance.



The ADAAA may protect a current or recovering alcoholic who can meet the definition of “disabled.” For instance, an employee who receives a warning for tardiness may be protected if he responds that he was late because of alcoholism and is seeking treatment. The employer should follow through on the discipline. And in most cases, the employer should grant a leave request for the employee to access treatment, whether the employer meets the qualifications for Family Medical Leave Act (FMLA), or not. FMLA considers substance abuse a serious health condition and defines it more broadly than the ADA.



EEOC analyzes an employer’s ability to make disability-related inquires in three stages; pre- offer, post-offer and employment. It is illegal to require any medical examination or disability- related inquiry prior to an offer of employment. Employers may make those inquires, including medical examinations at the post-offer stage only when all employees in that job category are treated the same. Employers may make these inquires and require medical examinations during employment, but must be consistent with business necessity and job-related.



Employers can require an employee who is an alcoholic to meet the same standards of performance and behavior as other employees. Poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism need not be tolerated if similar performance or conduct would not be acceptable for other employees. The ADA permits employers to prohibit the use of alcohol in the workplace. An employee who violates such policies, even if the conduct stems from alcoholism should face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol in the workplace.



An employer’s potential accommodations for an alcoholic may include a leave for treatment, flexible scheduling for counseling, and reducing distractions. These ideas for accommodations are based on specific identified needs. The supervisor and employer need to discuss what limitations the employee is experiencing and how performance will be affected. This interactive process should result in a unique set of accommodations to allow the individual to succeed.



Coworkers will question any special treatment provided. Supervisors must be prepared to maintain the confidentiality of any employee’s medical condition or accommodation.



Despite the employer’s effort or abstinence, litigation may follow. The spirit of the ADA is to level the playing field and provide everyone an opportunity to succeed in their positions. Keep that in mind, and your employment attorney informed.

Legislative Update

Recent ADA Case



Michael Boitnott took several medical leaves while working for Corning, due to leukemia. His work schedule was a 12-hour shift and his medical release limited him to an eight-hour day, and 40-hour week. Corning denied reinstatement, keeping him on leave. Boitnott was repeatedly denied reinstatement to positions which exceeded the hours stated in his medical release. When his medical release changed to 10-hour days with moderate overtime, Corning bargained with the union to create a new position in order to reinstate Boitnott. Boitnott was awarded the position more than a year after he initially requested reinstatement.



Boitnott filed a discrimination charge based on failure to accommodate his eight-hour shift medical requirement. EEOC issued a right-to-sue and he filed in federal court. Corning argued that Boitnott was not a person with a disability because he was able to work a 40-hour work week; and had no other substantially limiting life activities.



The Court agreed that an inability to work overtime does not constitute a limitation of a major life activity under the ADA.



NLRB Posting Update



Most employers are required to post the National Labor Relations Board’s Employee Rights Notice Posting by April 30, 2012. However, Amy Berman Jackson, U.S. District Court Judge invalidated portions of the rule that make failure to post an unfair labor practice. Find a printable copy of the required posting at the NLRB website: https://www.nlrb.gov/poster