Thursday, August 20, 2009

Does the ADAAA allow employers to terminate for disability-related misconduct?

An article titled “Police Employee Terminated For Misconduct, Not Alcoholism,” from the June 2009 issue of Public Safety Labor News shows how, prior to the ADAAA, a disabled employee was not allowed to use their condition as a shield to prevent discipline for inappropriate conduct. However, now that Congress has made its intent clear to broaden protected under the ADAA, we will need to wait for some appellate court cases to determine whether the changes to the law allow disabled employees to engage in misconduct with greater impunity.

The article referenced above highlights a case involving a Connecticut police office that is an alcoholic. Three times during 2004, the employee’s supervisors spoke to her about her use of sick and vacation time, expressing concern that she had used all of the time she had accrued during her nine years of employment.

In February of 2005, she was arrested for “breach of peace” for conduct while under the influence. As a result, the employee signed a Last Chance Agreement which acknowledged her years of service but also noted her “habitual absenteeism and demonstrated abuse of alcohol which impacts her attendance and performance.” Under this agreement, any violation of policy, inappropriate conduct, or habitual absence would subject her to immediate termination.

The employee was subsequently the subject of police incident reports in July and October of 2005, both involving alcohol. By the end of 2005 and the beginning of 2006, she was the subject of at least one police report a month due to conduct while under the influence of alcohol. On February 1, 2006, she was terminated due to the fact she “continued to demonstrate an unwillingness or inability to report to work on a consistent basis.”

After termination, the employee filed a lawsuit under the Americans with Disabilities Act, saying that alcoholism is an impairment covered by the ADA’s ban on discrimination. A federal trial court dismissed the lawsuit, “citing the difference between an employer terminating an employee for alcoholism and terminating the employee for misconduct that may have been caused by alcoholism.”

Under the ADA, prior to the January 2009 amendments, the Act allowed employers to terminate employees for misconduct if it was caused by a disability involving drugs or alcohol. An employer could hold an employee who engages in illegal use of drugs or who was an alcoholic to the same qualifications and standards for employment, job performance, or behavior that they hold for other employees, even if it’s a result of drug or alcohol use.

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