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The ADA protects alcoholics from disability discrimination, but not if they are intoxicated on the job.

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legal updates

April 2010

ADA Update:

Drunk Police Chief Not Protected By ADA



By Christopher W. Olmsted

When an off duty employee gets drunk and causes an automobile accident, can the employer discipline or terminate the employee even if he claims that he is an alcoholic protected by the ADA? In a Seventh Circuit Court of appeal case titled Budde v. Kane County Forest Preserve, the court considered this question in a discrimination case filed by a police chief.

Room For One More In The Drunk Tank?


Police Chief Budde visited the Moose Lodge one night while off duty and had a few too many drinks. With a blood alcohol level of .23 (nearly 3x the legal limit), he caused a car wreck on the way home. His drivers’ license was later suspended. He was placed on leave and subsequently terminated. The cause for termination was engaging in conduct below the standard for his position and the inability to drive a police car on account of having a suspended license.

Following his termination, the former police chief filed suit, contending that the District violated the Americans with Disabilities Act (“ADA”) by discriminating against him because of his disability when they fired him; by failing to accommodate his alcoholism; and by retaliating against him for requesting a reasonable accommodation.

The trial court granted a summary judgment motion in favor of the police department, finding that his termination was for misconduct, not on account of a disability.

Can Alcoholism Be a Disability?


Maybe. There is a distinction between drinking too much, which is an error in judgment, and alcoholism, which is a diagnosable disorder. Alcoholism can be a “disability” under the ADA when it substantially limits an individual's major life activities (and, under California law, when it merely limits a major life activity). An employer may violate the ADA and FEHA if it makes an adverse employment decisions merely because it knows an individual is an alcoholic.

However, on duty intoxication, even if the employee is an alcoholic, is certainly cause for termination. Moreover, off-duty drinking may cause job-related problems like absenteeism and tardiness, which may be grounds for discharge.

While the ADA generally considers conduct resulting from a disability to be part of the disability, rather than a separate basis for termination, an exception exists for cases of alcoholism and illegal drug use.

Police Chief Not “Qualified”


On appeal, the Seventh Circuit panel considered the legal standard for disability discrimination. In order to prevail on his ADA discrimination claim, an employee must first establish that he is a “qualified individual with a disability.” A “qualified individual with a disability” is someone who (1) satisfies the requisite skill, experience, education, and other job-related requirements of his employment position, and (2) can perform the essential functions of the position held or desired, with or without reasonable accommodation.

The police chief’s claim failed, ruled the court of appeal. As a result of his misconduct, he could not perform essential job functions. The police department’s personnel policies forbade officers from being publicly intoxicated and from violating public laws. Moreover, it was an essential job function to operate a vehicle. The chief couldn’t drive without a license.

Note that not every employer may be justified in terminating an employee for an off duty DUI. Many jobs do not require driving as an essential job function. Moreover, with respect to violating the law off duty, police officers may be held to a higher level of conduct.

Accommodation


Under both California and federal law, an alcoholic employee who is not intoxicated at work may have the right to reasonable accommodation in the form of time off for treatment or rehabilitation.

Under California Labor Code sections 1025-1028, employers of 25 or more employees must reasonably accommodate any employee who wishes voluntarily to enter and participate in an alcohol or drug rehabilitation program.

For the EEOC’s interpretation of ADA standards in connection with alcoholism, see “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities”.

Related Article:


ADA Update: Fitness For Duty Exam Tangles Employer In ADA Violation



Download entire April 2010 Legal Update in PDF format.

This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.




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