Is a drunk-driving employee protected under ADA?

In this edition of In the Trenches, Acme learns what happens when an employee overindulges.

Bo Degas was Acme’s regional sales manager operating out of the company’s home office in Acmeville, a small town at the end of the only railroad right of way in the county. His job was to sell to and maintain good relations with some of the larger customers in the state. He either drove to his appointments or flew out of the local airport, as appropriate.

A few years ago, Bo chaired the committee that implemented Acme’s first codified standard operating practices. Among other guidelines, the document said that a violation of any federal, state, county or municipal law constitutes grounds for immediate dismissal of any Acme employee involved.

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After work every Friday, Bo attended a gathering of his fraternal lodge brothers at which he ate dinner and drank the group’s famous barley wine. He always left his company car with its identifying logo in a prominent location in the lodge’s parking lot.

Does a company not have the right to expect a certain standard of behavior for its executives?

During the drive home one evening, Bo rear-ended another vehicle, which wrecked his car and sent the passengers of the other vehicle to the hospital. Bo’s blood alcohol level was measured at the scene was 0.23 g/L, several times the state’s legal limit. This triggered an immediate suspension of his driver’s license.
On Saturday morning, he called Shannon D’Ore, his supervisor, to tell her that he was involved in a vehicle accident, that he wasn’t hurt and that he’d be in to work on Monday morning.

On Monday, Bo gave Shannon more details about the accident and revealed that he might be charged for driving under the influence of alcohol. Bo swore that he didn’t have an alcohol problem, but Shannon suggested he take advantage of Acme’s employee assistance program (EAP) for referral to appropriate treatment, just in case. Bo agreed and enrolled himself that morning.

Small towns being what they are, the newspapers began making a big deal about the story of the DUI executive. Later on Monday, Shannon contacted several Acme employees to ask if they would be interested in driving Bo on some of his rounds to the local clients. None volunteered for that job.

Late Monday afternoon, Shannon conferred with Acme’s operations vice president to discuss Bo’s situation. They noted his more or less frequent arguments with coworkers and his apparent memory lapses. They concluded that Bo should be placed on paid administrative leave until things settle down.

Bo was diligent about giving Shannon a daily update on his progress with the EAP counseling and alcohol rehab. Bo’s wife chauffeured him to and from work until his driver’s license was returned to him.

The following Monday, Shannon sent Bo a registered letter to inform him that he was terminated based on factors that each justify termination. Shannon cited Bo’s various documented errors in judgment, his inability to perform the assigned work for lack of a driver’s license and conduct unbecoming an executive at Acme’s home office.

Bo replied that he hasn’t been convicted of the DUI and the license has only been revoked temporarily. Nevertheless, Bo filed a suit under the ADA, claiming that Acme discriminated against his disability — alcoholism — and refused to provide him any reasonable accommodation for his condition.

How could this situation have been prevented? Is this a case of trying to dodge personal responsibility for one’s actions? Would it have made any difference if Bo found his own accommodation for a missing driver’s license? Does having an employee assistance plan constitute sufficient accommodation? How closely should a company monitor an employee’s off-hour activities?

A plant engineer says:

This situation could have been prevented if Bo didn’t drive while under the influence of alcohol. I believe he’s trying to dodge personal responsibility for his actions. Acme has clear standards in place concerning conduct. If Bo didn’t want to abide by those standards, he should have left when they were put in place. Does a company not have the right to expect a certain standard of behavior for its executives? Bo drives a company vehicle with the company identity on the side. That carries a greater level of responsibility than most others who work for the company but drive their own vehicles.

Bo’s driving status isn’t the case here. It’s the actions that led up to the accident that are important. Having someone drive Bo isn’t the answer. Bo living up to company standards is. People who operate company vehicles, whether automobiles, trucks or powered industrial lifts can’t be allowed to operate those vehicles while under the influence of alcohol or drugs. To do so is an offense worthy of dismissal in many, if not most, companies. If Bo were operating a powered industrial lift and had an accident, he’d have been tested for drugs and alcohol. If the test were positive, he would have been let go. The same standard should apply to those driving company vehicles. Bo must go!

Jeffrey L. Strasser, Bacova Guild, (540) 863-2656

An academician says:

Both alcoholism and drug use are considered disabilities and are covered by the Americans with Disabilities Act, and the employer must provide “reasonable accommodation,” including adjustments to the work schedule to allow for ongoing treatment, as well as adjustments in job duties. However, the “disabled” worker is to be held to the same work standards as workers who aren’t disabled, and failure to perform at these standards is grounds for dismissal.

Acme’s process for handling Bo is pretty standard — a warning from HR, then a referral to an alcohol treatment facility and then some way to monitor the employee’s participation in treatment. However, Acme might have been a little quick to terminate Bo. He was on administrative leave during the treatment and thus Acme couldn’t determine whether his behavior, after a reasonable time in treatment, actually met Acme standards. My suggestion would have been to bring Bo back to work, maybe with adjusted work duties, after he completes a specified time in treatment and monitor his performance. If he doesn’t meet standards post-treatment, then termination is appropriate.

Professor Homer H. Johnson, Ph.D., Loyola University Chicago, (312) 915-6682

An attorney says:

As this scenario indicates, dealing with an employee having an alcohol problem or predilection can be tricky. Even if alcoholism is protected as a disability under state or federal law, an employer need not take unreasonable measures to accommodate an employee. It would be unreasonable to allow an alcoholic to work while under the influence or to let him drive a car while intoxicated or without a license, for example. The most likely kind of accommodation an employer would be required to provide an alcoholic employee would be a leave of absence to obtain treatment. Acme provided Bo with a leave, but while he was on leave, it reconsidered the situation and made a decision to terminate him for conduct unbecoming an executive.

These issues can arise in a variety of circumstances — an employee arrested for child abuse, for example — when the wrongdoing has no relationship to the employee’s work or his ability to perform the job but merely affects the company’s reputation. There’s no law that precludes an employer from terminating an employee who has engaged in conduct reflecting adversely on the employer. But if Bo could prove that Acme didn’t terminate another employee who engaged in similarly inappropriate conduct who was not an alcoholic, it would add fuel to his ADA claim. How closely an employer should monitor an employee’s off-hour and off-premises conduct has been the subject of much debate. When employers began terminating employees for overeating or smoking, for example, various states passed laws to combat that trend. Typically, those laws prohibit an employer from terminating an employee for engaging in legal conduct while off work. But in the last analysis here, Bo has no one but himself to blame for driving under the influence and causing physical injury.

Julie Badel, partner, Epstein Becker & Green, P.C., (312) 499-1418