The Rights and Implications of Accommodating Alcoholism in the Workplace

By: Kyle D. Kring and Faheem A. Tukhi   

In light of the recent lawsuit filed by the University of Southern California's former Head Football Coach, Steve Sarkisian, alleging discrimination against USC based on his alcohol addiction, it is imperative to address what an Employee's rights are if they suffer from alcoholism, and what an Employer must do to protect itself from breaking the law while ensuring their employee is treated fairly.

Under the Americans with Disabilities Act (ADA), an alcoholic is considered to be a person with a disability and is therefore protected by the ADA. Thus, an employer may be required to provide an accommodation to a person suffering from alcoholism. On the other hand, an employer may still discipline, discharge, or deny employment if that person's use of alcohol adversely affects job performance or conduct.

California's laws protecting disabilities such as alcoholism are governed by the Fair Employment and Housing Act (FEHA). Specifically, the Act prohibits an employer from discriminating against an employee based on that employee's disability and the FEHA recognizes alcoholism as a disability. That disability must simply be a "limitation" upon a "major life activity" (unlike the ADA's requirement that the disability be a " substantial limitation") and the Act recognizes "working" as a major life activity. (Cal. Gov. Code § 12926.1(c)). In other words, an employer cannot fire an employee simply because they suffer from alcoholism, and the employer must consequently provide reasonable accommodations.

Similar to the ADA, the California Labor Code (§ 1025) requires a private employer that employs 25 or more employees to reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol rehabilitation program, provided that the accommodation does not impose an undue hardship on the employer. Therefore, generally, an employee suffering from alcoholism may join a rehabilitation program without the fear of losing their job. If, on the other hand, an employer's daily operations must substantially change to provide the accommodation, then the employer may have a valid argument to refrain from making the accommodation. To illustrate, Coach Sarkisian alleges in his lawsuit that he was fired despite having obtained permission from USC's Athletic Director to get treatment for his alcoholism and made arrangements with the coaching staff to ensure his departure would not disrupt the team's day-to-day operations.

Notably, the accommodation may overlap with federal law under the Family Medical Leave Act (FMLA) or California law under the California Family Rights Act (CFRA) which guarantees that an employee may take, and an employer must provide, up to twelve workweeks of paid or unpaid leave if an employee is unable to work because of a serious health condition. Of course, there are certain requirements that both the employee and employer must meet to qualify for leave under the FMLA and CFRA. Nonetheless, employers and employees should be aware of this alternative when confronted with the issue of an accommodation or leave for alcoholism.

The California Labor Code (§ 1025) goes on to clarify that an employer may still refuse to hire or discharge an employee who, because of the employee's current use of alcohol, is unable to perform his or her duties or cannot perform those duties without endangering their own health and safety or the health and safety of others. This means that if an employee is currently abusing alcohol and it impairs their ability to do their job, or it jeopardizes their safety or the safety of their colleagues, the employer may validly and immediately fire the employee. To again illustrate using the USC example, the University will likely argue that Coach Sarkisian's current and active alcohol abuse impaired his ability to effectively coach the football players and manage the football staff, evidenced by the team's inability to win games that they statistically should have won by a landslide.

Despite the various federal and state laws and acts, employers and employees should be aware of their rights with respect to alcoholism in the workplace. Employees can rest assured that they have legitimate legal avenues to seek rehabilitation coupled with job security, whereas employers can protect their operation while still treating their employees fairly.

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