This is a trick question, right? I mean, isn’t asking an applicant or employee about drinking habits a violation of the ADA? Under the ADA, alcoholism is a protected disability The answer to any such questions could reveal that disability, and if the employer bases its decisions on that response, it could be liable for an ADA violation. Specifically, the ADA clearly states that an employer, “shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
So that’s it then, right? We’re done. No employer can ever ask questions about an employee’s drinking habits, right? Not so fast! Look at the last phrase. The inquiry has to be job-related and consistent with business necessity. If the person’s alcohol use has to do with essential job functions or other legitimate business concerns, then in fact, the employer may be allowed to ask those questions without running afoul of the ADA. Let’s look at a real, live case example.
The case is Lansdale v. UPS Supply Chain Solutions, Inc. Here’s what went down:
Mr. Lansdale was a Regional Manager for UPS Supply Chain Solutions. His position required him to travel almost weekly throughout the year. He received a corporate credit card to use for expenses he incurred during his business-related travel. UPS had policies regarding use of the corporate credit card, among them a prohibition against using it for personal purchases. An internal audit revealed inconsistencies between his expense reports and his actual usage. Suspecting that he was using the corporate card for personal purchases, UPS conducted an internal investigation. The investigation revealed questionable expenses, and inconsistencies between his expense reports and actual usage. UPS believed Mr. Lansdale was using the corporate card for personal purchases and then attempting them to cover them up. Both actions violated company policy. UPS then interviewed Mr. Lansdale. The interview included questions about whether he had a drinking problem, and other questions about his alcohol usage in general. Toward the end of the interview, Mr. Lansdale wrote a statement acknowledging that he would sometimes use the company card to hide alcohol-related charges from his wife. The interviewer and Mr. Lansdale continued to discuss Mr. Lansdale’s drinking habits. The next day UPS terminated Mr. Lansdale.
I’m sure you won’t be surprised to learn that after his termination, Mr. Lansdale sued UPS, alleging disability discrimination under the ADA/ADAAA and the Minnesota Human Rights Act. He argued that he was either discriminated against because of his disability, or because UPS regarded him as disabled. UPS argued that the termination had nothing to do with an actual or perceived disability, rather it was due to his violation of company policies with respect to his use of the company credit card. A jury agreed with UPS on all counts. Mr. Lansdale then filed a motion for a Judgment as a Matter of Law (“JMOV”), arguing that the verdict was against the weight of the evidence. The court wasn’t buying it though. Here’s why:
The court reasoned that to rule in favor of Mr Lansdale it would have to have found that a jury could not have a legally sufficient basis to find for UPS, considering all evidence available to it. The court further reasoned that even if the inquiries were disability-related, the inquiries were not the cause of the termination. The extensive evidence of his actual credit card use, coupled with his own admission as to how he used the credit card provided ample justification for his termination. The court went further: it found that his admission alone was sufficient basis for the jury’s conclusion.
OK, so what does this case mean for the rest of the world? Yes, alcoholism is a protected disability under the ADA (and corresponding state laws). That said, an employee in a disability discrimination claim, must still prove that: a) s/he had an impairment substantially limiting one or more major life activities; or b) the employer regarded him/her as having such an impairment; AND c) it was a motivating factor in the termination decision. At the very least, Mr. Lansdale did not — and could not- satisfy that third element.
What are some other takeaways? First, you CAN ask disability-related questions that are related to the job or legitimate business concerns. Second, it was not clear whether this employee was actually claiming to suffer from alcoholism. Even so, while alcoholism is a protected disability, the ADA (and the EEOC) is clear that allowing an employee to be under the influence of alcohol while working is not a reasonable accommodation. The ADA also does not prohibit an employer from disciplining an employee for misconduct. Allowing an employee to misuse a company credit card so he can abuse alcohol is not a requirement under the ADA. Employers can use legitimate, non-discriminatory policies to discipline employees, even if/when they are disabled under the ADA or corresponding state laws.
Hope that clears a few things up for you.
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar. Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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