ADA not protection for workplace drunkenness
Published 02/14/01

A troubling issue arises when a employee commits egregious misconduct in the workplace which the employee states is as a result of his disability. Alcoholism is generally regarded as a disability under the American With Disabilities Act (ADA).

Alcoholism may result in a variety of circumstances where the employee commits egregious misconduct. The ADA specifically states that an employer may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such an entity holds other employees, even if an unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.

For example, an alcoholic may, because of his alcoholism, show up to work drunk and Courts have found that terminating the employee even though he is an alcoholic for intoxication at the work site wholly appropriate and does not violate the ADA.

In the Federal Court of Massachusetts, 1994 case of Flynn v. Raytheon Co., the employee Flynn was terminated after he arrived at the work site in an intoxicated state. Flynn later successfully completed a rehabilitation program, but Raytheon refused to reinstate him. Flynn then brought suit under the ADA alleging that Raytheon’s failure to reinstate him constituted a failure to reasonably accommodate him. The Court disagreed and held, not surprisingly, that Raytheon may require that its employees not be under the influence of alcohol while at work. Thus, despite the fact that Flynn’s misconduct may have been caused by his disability, Raytheon’s actions did not violate the ADA.

An alcoholic may also have excessive unauthorized absences, whether it be for hangovers or jail time due to drunk driving or other alcohol related offenses. The Courts have often found that such alcoholic-related excessive absences make that employee "not a qualified individual with a disability" and therefore he can be terminated.

Other misconduct of an alcoholic may occur off duty and Courts have almost universally held that an employee who engages in off duty misconduct is subject to adverse employment action, even if the misconduct is related to his alcoholism.

For example, in the case of Maddox v. The University of Tennessee, the employee was a football coach at the University of Tennessee. He was arrested for drunk driving and for that reason was terminated by the University. His ADA case failed because the Court noted that there is a distinction between discharging an employee because of misconduct and discharging an employee because of his alcoholism. In this case, he was discharged because of drunk driving, not because of his alcoholism.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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