IS ALCOHOLISM PROTECTED UNDER THE ADA?
BY THOMAS D. SCHNEID
In a recent decision in the U.S. Court of Appeals of Oregon [Schmidt v. Safeway, Inc., 3 AD Cases 1141 (D. Oregon, 1994)], the court addressed the issue of whether a discharged alcoholic employee should be permitted to take unpaid leave to enter a rehabilitation program. This case is of particular interest to firefighting organizations, given the fact that the court resolved many of the unique issues under the Americans with Disabilities Act (ADA) and addressed the question of reasonable accommodation for alcoholic employees. Given that fire service organizations are not immune to employees` use of controlled substances and alcohol, they should be aware of the requirements under the ADA.
In this case, an employee working as a truck driver for Safeway, Inc. was terminated for being intoxicated on the job. The subsequent urinalysis confirmed the appropriate level of intoxication. The employee requested a leave of absence to undergo treatment for alcoholism in lieu of termination, which was denied by Safeway. The employee brought an action against Safeway, Inc. under Title I of the ADA. Safeway argued that the ADA does not require an employer to offer a leave of absence to an employee with an alcohol problem so the employee can enter a qualified rehabilitation program. In addition, the court concluded that an employer is not required to pay for the treatment itself. However, the court found that “the ADA may require an employer to provide a leave of absence to an employee with an alcohol problem, particularly if the employer would provide that accommodation to an employee with cancer or some other illness requiring medical treatment.”
Safeway also argued the exception for undue hardship permitted under the ADA in granting the employee leave without pay. The court rejected this argument, stating that “this is not the sort of hardship the statute envisioned”; in addition, the court focused on the lack of adverse economic impact that an unpaid leave of absence would have had on the employer.
Safeway`s third argument was that it was entitled to summary judgment because the employee had not requested the accommodation until after his discharge. The court recognized that “an employer is not ordinarily liable for failure to accommodate a disability of which it has no knowledge…(however), the employee cannot expect the employer to read his mind and know he secretly wants a particular accommodation and sue the employer for not providing it.” The court also found that “an employer has no duty to accommodate an employee who denies she has a disability or denies a need for accommodation.” The court concluded that these rules were not applicable in this case and thus denied the request for summary judgment. The court followed the general rule in finding, “The ADA does not require the plaintiff to speak any magic words before he is subject to protection. The employee need not mention the ADA or even the term accommodation.” The court further found, “An employer knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. The employer need only know the underlying facts, not the legal significance of these facts….It is sufficient that the defendant knew the plaintiff had an alcohol problem.”
In this case, the employer additionally argued that the employee was not a qualified individual with a disability because of Department of Transportation (DOT) regulations and that the employee, being allowed to continue to drive a truck, would create a direct threat to himself and others. The employer also argued that, under DOT regulations, it was required to terminate Schmidt because he appeared at work under the influence of alcohol. The court rejected all of these arguments, relying on the ADA regulations.
This case set forth the liberal view many courts may use when addressing the issue of an alcoholic employee within the workplace. This decision should be compared with the decision in Derbis v. U.S. Shoe Corporation, Civil Action No. MJG-93-130 (D. Md Sept. 7, 1994), which provides a conservative view of a similar issue. Prudent fire service organizations should address the issue of alcohol and illegal drug use within their organizations and be prepared to address the issue of a request for accommodation after the individual is identified as possessing a particular problem with drugs or alcohol. Be prepared in advance for this type of request for accommodation and appropriately analyze your organization, testing programs, personnel policies, rehabilitation programs, and other areas to ensure that you provide the appropriate response to a firefighter with this type of disability. n
