fired.jpgUPDATE BELOW
It’s hard not to read an email with the subject line: “Beer=Fired.”

Dave M., an alcoholic, sent me an urgent question this week asking about his rights.

“I went to detox for an alcohol relapse, and while I was in rehab I was fired. Is this legal?? I called out for the days missed, but they canned me for violating the callout procedure. I did provide a letter from the hospital, emergency room, etc, but they refused to give me my job back.”

I really felt for this guy because I’ve seen first hand how alcoholism can destroy a person’s life even when they try hard to stop drinking.

Clearly, being an alcoholic is a debilitating affliction but is it considered a disability under the Americans with Disabilities Act, and as such, protected under the law?

Turns out, it is designated a disability under the ADA. But alas it’s not as clear cut as being a paraplegic or blind.

This from the Equal Employment Opportunity Commission:

An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

If you’re blind, the caveat that if your blindness “adversely affects job performance or conduct” doesn’t seem to apply under the ADA. The employer is expected to accommodate your blindness if it does not cause an undue hardship on the business.

And the courts seem to side with employers in many cases, even though the law says alcoholism is a disability.

This from the American Bar Association:

Few courts have held that the plaintiff can establish that his alcoholism is a disability under the ADA. Instead, courts hold that alcoholism is an impairment, but it does not guarantee that an individual has a substantial limitation of a major life activity that would protect the individual under the ADA.

That’s bad news for Dave, who worked for a client services company in Philadelphia.

Another factor working against him is that his bosses knew he was an alcoholic before the rehab incident, so it’s hard to claim they fired him because of his disability because they were aware of it before.

The main reason Dave’s employer is claiming he was fired is he did not follow protocol when it comes to calling in sick. “I called out for the first 2 days but was unable to call on the 3rd and 4th day, they took my phone. I did call on the 5th day letting them know I was in the hospital.”

I know it seems Dave did everything he could to inform his managers, but when you’ve got a disability of any kind you have to be over diligent with these things so you don’t give your employer any ammunition to reprimand you or fire you.

It’s hard to plan for unforeseen events related to your illness, but you have to come up with a back up plan just in case.

I’m not letting his bosses off the hook, but unfortunately people who are disabled, minorities, and even women, have to work twice as hard to get half as much at work. It’s a harsh reality I know, but it’s how the world works my friends.

So, beer-loving Dave, I say you talk to your manager, or the company’s human resources department if there is one, and make a case for yourself once again calling your alcoholism a disability a couple of time during the conversation. (But please don’t threaten anyone with a lawsuit. Be polite.) If you get no movement at all, I would contact the EEOC, or your local employee rights agency if there is one, and ask them if you have a leg to stand on and if they can make some recommendations.

It sounds like Dave’s a witty, hard-working guy. Sometimes we need to give people a break and be more understanding, no?

I’m thinking jobless Dave may have even more trouble staying away from six packs.

UPDATE:

I just got some more information for Dave regarding the Family and Medical Leave Act (FMLA) and the rights for employees taking time off for addiction treatment from Teresa Jakubowski, an attorney with Barnes & Thornburg LLP:

Substance abuse, including alcoholism, can be covered as a serious health condition under the FMLA if it involves inpatient care or continuing treatment by a health care provider. Under the FMLA, leave taken at the recommendation of a health care provider to obtain treatment is protected leave, however, leave taken merely because of the use of alcohol or controlled substances (i.e. did not report to work because intoxicated) is not.

With respect to the notice the employee must provide in order for the leave to be protected, the FMLA regulations issued by the Department of Labor do provide that an employer can require that the employee comply with the employer’s policy and/or procedure for reporting off work. The regulations provide some exception in circumstances where the employee is unable to do so. The case decisions in this area are very fact specific and take into account factors such as the reason the employee was unable to call in, whether a family member or friend attempted to notify the employer, the content of the initial notice provided to the employer, how soon the employee contacted the employee once he was able etc.

This individual may wish to consult an attorney for an assessment based on the full facts of his situation.

[Slashdot] [Digg] [Reddit] [del.icio.us] [Facebook] [Technorati] [Google] [StumbleUpon]