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‘Last-Chance agreements’ are reasonable accommodations for substance abuse

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in Employment Law,FMLA Guidelines,Human Resources

A court has ruled that so-called “last-chance agreements”—which put off discharge in favor of treatment for an active drug or alcohol problem—are valid as reasonable accommodations. If last-chance agreements were banned, employees with substance abuse problems would lose an important avenue toward keeping their jobs.

Recent case: Terri Nicholson, who is a nurse, was a victim of a violent crime that left her depressed and anxious. After apparently turning to alcohol to cope, Nicholson was allowed to take FMLA leave when she needed it.

But when Nicholson appeared intoxicated at the home of a co-worker, she was referred to alcohol treatment. Another co-worker said Nicholson sometimes worked with slurred speech and appeared “dazed” and “groggy.”

Her employer placed Nicholson on a last-chance agreement, specifying that she would lose her job if she drank alcohol again. When she later called a co-worker while intoxicated, she was fired for violating the agreement.

Nicholson sued, alleging that last-chance agreements illegally discriminate against disabled employees with alcohol problems. But the court tossed out her case. It reasoned that when an employee is a danger to herself or others—as an intoxicated nurse clearly might be—then the last-chance agreement is itself a reasonable accommodation. (Nicholson v. West Penn Allegheny Health System, No. 06-0814, WD PA, 2007) 

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