Recently, Ben Affleck stepped down from directing the new Batman movie to focus on his recovery following recent treatment for alcoholism. His reason for stepping down was due to his belief that he was unable to give the directing role the focus and passion it requires.
Alcoholism and drug addiction present complicated issues under the Americans with Disabilities Act (ADA). The ADA protects “qualified individuals with disabilities” – individuals who can perform the essential functions of their position (or the position they are seeking) with or without reasonable accommodation. “Disability” is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment.
Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” (and therefore not protected by the ADA) when the employer takes action on the basis of their drug use. However, the ADA may protect a recovered addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability.” The ADA may protect an alcoholic who can meet the definition of “disability.” Notwithstanding, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.
In the event an employee engages in misconduct or poor performance due to alcohol or drug abuse, the employer is entitled to discipline the employee. If the employer determines that discipline is necessary, the nature of the discipline should be the same that it would be for any other employee for failing to meet the employer’s performance standards or who engages in similar misconduct.
An employee whose poor performance or misconduct is due to the current illegal use of drugs is not covered by the ADA. Therefore, an employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary action is appropriate, although the employer can offer the employee leave or other assistance so that the employer may receive treatment. On the other hand, an employee whose performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation to obtain some form of treatment, separate and apart from any disciplinary action the employer may choose to implement, assuming the discipline is not termination.
Like Ben Affleck, if the employee self-discloses their alcohol addiction before any performance related issues or misconduct surfaces, then the employer would be required to offer a reasonable accommodation; perhaps time off or a modified work schedule in order to attend treatments. The Family and Medical Leave Act also applies to eligible employees who seek treatment for drug and alcohol related conditions.
While Ben Affleck decided to go public with his addiction, most employees do not. Employers must be mindful of confidentiality requirements to ensure that information relating to employees’ disabilities or accommodations are kept confidential. It is human nature for employees to be curious or perceive that certain employees are given preferential treatment. Regardless of any morale issue, employers must respond to such inquiries that they do not discuss one employee’s situation with another in order to protect the privacy rights of all employees.