Parsons Behle & Latimer Employment Law Seminar - Boise, Idaho - October 19, 2017

1. Annual Idaho Parsons Behle & Latimer Employment Law Seminar
ALCOHOLISM, DRUG ADDICTION AND
MENTAL HEALTH: NAVIGATING THE
MINEFIELD UNDER THE ADA AND FMLA
J. Kevin West
208.562.4908
kwest@parsonsbehle.com
parsonsbehle.com
THURSDAY OCTOBER 19, 2017 | BOISE CENTER EAST

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A. Does the employee have a current disability?
1. Does s/he have an impairment?
If so, what?
2. Is a major life activity affected by the impairment?
e.g., walking, seeing, hearing, learning, etc.
3. Does the impairment substantially limit the major life activity?
 How long is the condition expected to last?
First, a refresher on basic ADA analysis . . . .

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4a. Alternatively, does the employee have a “record” of a
disability? (go to A 1-3 only in past tense)
< OR >
4b. Is the employee “regarded as” having a disability?

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B. Is the employee “qualified”?
1. Does the employee have the required skill, education and/or
meet the qualifications for the job?
2. What are the “essential functions” of the job?
3. Can the employee perform the essential functions of the job
with or without “reasonable accommodation?”

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C. What is “reasonable” accommodation?
1. What category of disability does the employee claim?
 current
 “record of”
 “regarded as” (no accommodation required)

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2. Has the reasonable accommodation process been triggered
by –
a. the employee requesting an accommodation
b. the employer knowing that the employee needs an accommodation

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3. What specific type of accommodation is needed?
4. Has the employer engaged in the interactive process?
 with the employee?
 with other “experts”?

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5. Would accommodation impose an “undue hardship” on the
employer?
 cost
 other impact on the employer
 impact on other employees

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D. Does the employee pose a “direct threat”?
1. What is the risk posed by the employee?
2. Is there a significant risk of substantial harm to –
a. the employee
b. others

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3. Can the risk or harm be reduced by providing reasonable
accommodation?
a. Did the employer engage in the “interactive process” to identify an
accommodation?
b. Would providing accommodation impose an undue hardship on the
employer?

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See handout: “ADA Decision Tree”

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Basic Rule:
ADA does not protect employees who are currently
engaging in the illegal use of drugs
Drug Use and Drug Addiction

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Former drug addicts may be protected by the ADA
Former casual drug users are not protected
Current users of drugs, whether an addict or casual user, are
not protected by the ADA

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 What is “illegal use”?
Use of illegal drugs (e.g., cocaine)
Illegal use of Rx drugs (e.g., using the Rx of another person)
It is critical for employers to determine if drug use is legal or
illegal

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Example:
An employer took adverse action against an individual who
tested positive for methadone
But the methadone use was part of a drug rehabilitation
program, so the drug use was not illegal.

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 What is “current” use?
– EEOC says it means that the use occurred “recently enough” to
justify the employer’s belief that drug use is an ongoing
problem.
– No specific time period; analysis is case specific.
• 10th circuit case: 30 days was “current” because employee had been
through drug rehab but prognosis was guarded (cure in doubt until 90
days)

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 What are exceptions to the “current use” rule?
1. Employees who have successfully completed a drug
rehab program and are no longer using drugs illegally
2. Employees who are currently participating in a
supervised drug rehab program and are no longer using
drugs illegally.
3. Employees who are erroneously “regarded as” engaging
in illegal drug use

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 Former drug addicts may be entitled to accommodation
time off to attend counseling sessions
time off for doctor appointments relating to addiction issues

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 Employers are not required to accommodate absenteeism
or poor performance attributable to drug addiction.
 Employers may hold drug users to the same standards as
other employees
 Requests for accommodation made for the first time
during discipline or termination need not be accepted
Reasonable Accommodation

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NOTE: drug testing is not prohibited by the ADA
because it is not considered a “medical test”

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 Unlike current illegal drug users (who are addicts), current
users of alcohol (who are alcoholics) are protected by the
ADA.
Alcholism

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 Employers may:
prohibit alcohol use in the workplace
prohibit employees from being under the influence in the
workplace
hold alcoholics to the same standards as other employees

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Example: an employee consistently comes in late on
Mondays because of weekend drinking
Can the employer enforce its tardiness policy if the employee is
an alcoholic?
Answer: YES

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Controversy:
Must the employer allow a leave of absence for drug
or alcohol rehab as a reasonable accommodation?
10th Circuit: Yes
9th Circuit: Maybe
EEOC: Yes

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However, the ADA does not require:
1. Accommodations that merely enable the employee’s
alcoholism (e.g., flexible schedule for binge drinking)
2. Leave for treatment where such would be futile (e.g., repeated
leaves where prognosis for recovery is poor)
3. Accommodation to alcoholics who pose a significant risk of
harm to themselves or others

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Drugs:
Asking About Drug and Alcohol Use
1) Ok to ask about current illegal drug use
2) Not ok to ask about lawful drug use
unless the employee tests positive for
illegal drug use
3) Not ok to ask about prior addiction

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Alcohol:
1) Not ok to ask questions that reveal
alcoholism
2) Ok to ask if person drinks
3) Not ok to ask how much a person drinks

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Key Resource:
“Depression, PTSD and other Mental Health
Conditions in the Workplace: Your Legal Rights”
EEOC Guidance, 2016
Mental Health Issues

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 Employers may not take adverse action because an
employee has a mental health condition
but employee must be able to perform essential job functions,
with or without accommodation

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 Potential Accommodations:
– altered work schedules
– altered break schedules
– quiet spaces to work
– putting job instructions in writing (supervisory changes)
– mentoring/job coaches
– leave for counseling/therapy

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 Questions about mental health:
Ok to ask only when –
1) employee seeks accommodation for mental health issue
2) after job offer but before job begins (if questions are asked
of all applicants)
3) when there is objective evidence that the employee cannot
perform the essential job functions, or poses a safety risk to
self/others.

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Must employers excuse or accommodate poor job performance (but not
misconduct) due to mental health conditions or side effects of
medication?
Traditional view: No
EEOC view: No (so long as the rule of conduct is job-related)
9th/10th circuits: generally yes
*Note: The 9th/10th circuit positions do not apply to drug/alcohol related
performance issues
EEOC guidance: “because reasonable accommodation is always
prospective, an employer is not required to excuse past misconduct

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Example: Fast food worker with autism who has meltdowns
and angry outbursts at other employees/
customers.
Example: Employer fired employee with depression who
made suicide attempt while off duty.

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Is leave required as an accommodation”
 yes, if it could enable the employee to once again
perform the job duties
 but indefinite leave is not required, nor is leave where
treatment prognosis is “futile”
 Note: the employee may qualify for FMLA if the mental
health condition constitutes a “serious health condition”

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 Must an employer accommodate by reassigning the
employee to a vacant available position?
Probably yes, if the employee is permanently unable to perform
the old job, but able to do the vacant position

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 Is “stress” considered a disability under the ADA?
– By itself, generally no
– Yes if related to or part of a mental impairment (e.g., anxiety
and panic attack disorders)
– Employers are not required to “immunize” employees from the
inherent stress in the workplace (e.g., fast pace of workplace,
criticism of performance, personality differences)

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 If medication corrects the effects of the mental condition,
can the condition still be considered an “impairment”
under the ADA?
Yes (for purposes of ADA analysis, the impairment is viewed
without the mitigative effects of the medication)

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 Is it a reasonable accommodation to ask the employer to
make sure an employee takes his/her meds?
No. The ADA does not require medication monitoring.

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 Employers may always enforce rules prohibiting
workplace violence caused by drug use, alcoholism or
mental health

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 J. Kevin West
208.562.4908
kwest@parsonsbehle.com
Thank You