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Consider both the ADA and the FMLA when handling employee substance abuse

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in Firing,FMLA Guidelines,Human Resources

The ADA and the FMLA work together to give options to employees with drinking problems, with the goal of helping them get sober and stay that way. If one of your employees needs treatment for alcoholism, consider both laws when approving time off or altering his schedule.

It may not be enough to merely provide reasonable accommodations under the ADA.

Recent case: George has a history of alcohol abuse. Almost two decades ago, he underwent intensive treatment for the problem. He then went to work for a predecessor company that eventually became Modular Space Corp.

For 10 years, he successfully maintained sobriety and got excellent reviews, regular promotions and was generally regarded as a valuable employee.

Then personal tragedy struck. His wife died, leaving him to raise two young children. His house was damaged during Hurricane Ike. He remarried a few months later and took on parenting an additional child. George began to drink again, reporting later that he often left work at lunch to “grab a pint of vodka.”

His behavior began to affect his work, especially at company-sponsored outings like golf matches and charity events.

George sought help from the company’s employee assistance program after he had to pull out of a charity bike race because alcohol withdrawal left him with tremors and other medical problems. The company worked with George to arrange a short-term leave of absence for alcohol treatment.

No one mentioned FMLA leave or explained his rights under that law.

When he was cleared to return to work, he had to sign a last-chance agreement. It called for him to stay sober, attend Alcoholics Anonymous (AA) meetings and submit to random drug and alcohol tests.

George asked if he could take time off work to attend the AA meetings, but was informed he should attend on his own time.

After passing his first substance-abuse test, co-workers reported that he began acting strangely.

One said he frequently went to his car to take sips from something in a brown bag. Someone else said he could smell ­alcohol on George’s breath.

That prompted Modular Space to require a drug and alcohol test. His supervisor told him to report to a testing facility, but said he wasn’t allowed to drive himself there. George demanded to drive, the company refused to allow it and he was subsequently fired for refusing to take the test.

He sued, alleging both ADA and FMLA violations.

The court concluded that Modular Space didn’t violate the ADA because last-chance agreements are allowed and can be a form of reasonable accommodations for the disability of alcoholism.

But the court did let George’s FMLA claim go forward after he explained that he would have asked for more time off for active treatment—plus intermittent FMLA leave to attend AA meetings—had he known he was eligible for FMLA leave. That, he argued, would have helped him stay sober and thus avoid being fired for drinking and refusing the test. (Sechler v. Modular Space Corporation, No. 4:10-CV-5177, SD TX, 2012)

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