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Dealing with alcoholic employees

 

alcohol-abuse

One issue that makes employers very nervous is dealing with employees who have problems with alcohol.  A new decision by a federal district court judge in St. Paul will help to clarify an employer’s obligations.   

The plaintiff in the case, Buzzard v. Dakota, Minnesota and Eastern Railroad Company,  has a long history of chronic alcoholism, much of which he disclosed when hired in 2006.  Several months after beginning with the railroad, however, Buzzard relapsed and ended up in the hospital with alcohol poisoning.   After his release, he was referred to a substance abuse professional at Lutheran Social Services to “ensure treatment compliance”, and Buzzard agreed to an “EAP Agreement” that required him to take various treatment-related steps.  Significantly, the railroad played no role in these events.   

As a result of his signing the EAP Agreement, the railroad allowed Buzzard to return to work subject to the condition that it could conduct random drug and alcohol testing.  Buzzard also signed a return-to-work agreement, which implemented the EAP Agreement, and he understood that he would be subject to termination if he violated any of the conditions in the EAP Agreement. 

Three days after his return, Buzzard relapsed again. Although Buzzard’s use of alcohol had violated his EAP and return-to-work agreements, DM&E provided him with short-term disability benefits and did not terminate him.  Buzzard returned to in-patient treatment.  A month later, he was arrested for driving under the influence and sent to a detox facility.   Several weeks later, the railroad learned that Buzzard had had no contact with the EAP provider or the SAP.  It advised him that in order for him to return to work, it  needed written confirmation that he was attending counseling sessions.   Buzzard did not, however, contact his counselor.  Because his failure to do so violated the return-to-work agreement, DM&E terminated Buzzard’s employment.   Buzzard then sued, alleging disability discrimination. 

The Court dismissed Buzzard’s case at the summary judgment stage on several different grounds.  First, it found that Buzzard’s impairment did not meet the ADA’s definition of a disability because he failed to show that he was unable to perform a major life activity that the average person in the general population can perform.  Buzzard argued that the “limitations” he suffered during his relapses of alcoholism (which involved his diet and hygiene) showed that he was unable to perform major life activities.  The Court, however, rejected this argument, finding that there was no evidence that Buzzard’s relapses restrict his diet and hygiene habits so severely that his ability to care for himself was significantly below that of the average person.  It also quoted an earlier decision that “temporary afflictions,” including “the effects of . . . alcoholism-induced inebriation,” do not qualify as disabilities. 

Buzzard next argued that even if he did not actually have a disability, he could still recover because the railroad “regarded” him as being disabled by requiring him to participate in the EAP program. .   (This provision “is intended to combat the effects of archaic attitudes, erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities.”)    In support of this argument, Buzzard relied on a 1997 case called Miner v. Cargill Communications, which found that an employer’s insistence that an employee who had missed a day of work because of her drinking the night before choose between entering an alcohol treatment program and being fired showed that it “regarded” her as an alcoholic.    In Miner, however, the employee had never admitted to being an alcoholic, and had never voluntarily agreed to seek treatment for alcoholism. Here, of course, Buzzard had been diagnosed with alcoholism and had attended AA meetings.  Thus, DM&E’s referral of Buzzard to treatment was based on actual evidence that Buzzard was an alcoholic, not on stereotypes or myths. 

Finally, the Court dismissed Buzzard’s claim because there was no evidence that the railroad fired him because he is an alcoholic.   As the Court found, terminating an employee who violates a voluntary return-to-work agreement is not unlawful under the ADA.  Such agreements are not discriminatory, especially when they are supported by valuable consideration – i.e., that the employee will not be terminated.  Buzzard’s return-to-work agreement was supported by valuable consideration, because it guaranteed that he would keep his position at DM&E as long as he met the conditions of the agreement.

 

While still a difficult area of the law, this case provides some helpful insight into how to handle employees with alcohol problems.  First, employers must base all decisions on objective information, not stereotypes or assumptions.  Second, employers should never compel an employee to seek treatment, but should make EAP and other options available.  Third, employers should spell out any conditions for retaining employment in writing.  Fourth, the employer should be able to show the various ways in which it did try to accommodate the employee.   Finally, employers who are forced to terminate an employee after she violates a return-to-work agreement or similar conditions should feel confident that the termination is lawful.


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