Contrary to popular belief, alcoholism is covered by the Americans with Disabilities Act (ADA) and people with alcoholism must be reasonably accommodated. What is considered reasonable, though, often is murky, as the firing of University of Southern California (USC) football coach Steve Sarkisian in October 2015 shows.
Misinformation about alcoholics and the ADA is common; Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C., described some common myths.
Myth: Alcohol abuse is unprotected in the same way as is current use of illegal drugs.
Fact: Current abuse of alcohol, unlike current use of illegal drugs, is not excluded from ADA protection. “The alcoholic is not excluded from coverage just because he drinks,” said David Fram, director of ADA and Equal Employment Opportunity Services for the National Employment Law Institute, which conducts conferences on employment law.
Myth: Alcohol testing can be conducted on a no-cause basis.
Fact: An alcohol test may not be required before a conditional offer of employment has been made, and current employees can be tested for alcohol only if there is reasonable suspicion the person has been drinking.
Myth: No action can be taken against an alcoholic employee.
Fact: An employer may enforce its attendance rules and rules against coming to work under the influence, Shea noted. And it may enforce its performance standards even if the employee’s noncompliance results from alcoholism.
Required accommodations might include time off for the employee to undergo rehabilitation or to attend Alcoholics Anonymous meetings.
The biggest myth is that alcoholism could never possibly be considered a disability, said Scott Schneider, an attorney with Fisher & Phillips in New Orleans and Houston. “That seems to be a very intuitive reaction,” he added. “But it’s simply incorrect.”
The University of Southern California fired Sarkisian Oct. 12, the day after Sarkisian allegedly pleaded with his boss, the athletic director, for time off to attend an inpatient rehabilitation program to treat his alcoholism.
Sarkisian had embarrassed the university by showing up to work events under the influence, according to Lara de Leon, an attorney with Ogletree Deakins in Orange County, Calif.
Sarkisian first got into trouble at USC by showing up to a pep rally on Aug. 22 apparently drunk, speaking with slurred speech and using an expletive. But Sarkisian alleged he had only two beers before the pep rally and had taken two medications prescribed to him for anxiety.
He also allegedly was inebriated during the team’s September victory against Arizona State University, an allegation Sarkisian denied.
After a surprise loss to the University of Washington on Oct. 8, various media outlets began calling for Sarkisian to be fired.
Sarkisian showed up to a team meeting on Oct. 11 addled from drinking the previous night. He had not slept and suffered from anxiety and depression that were, according to the complaint, “spiraling out of control.” Sarkisian had taken medication shortly before the team meeting and did not appear to be sober. He left before practice began and went home where he was upset, teary and nearly hyperventilating, according to Sarkisian’s complaint. Media reports, however, said that USC officials asked Sarkisian to leave and that he had to be escorted off the premises.
When the athletic director called Sarkisian later that day, Sarkisian said, “I’m not right. I need time off to get well,” according to the complaint.
The athletic director allegedly answered, “Unbelievable! Can’t you even go back to the office to finish the day?”
Sarkisian answered, “No, I need to get help. I’m not right.”
The athletic director called Sarkisian back after their initial conversation Oct. 11 and told Sarkisian he was being placed on an indefinite leave of absence, and that the assistant coach was now the interim head coach, according to the complaint.
Later that day, a university sports psychologist called Sarkisian. He claimed that she suggested doubling the dosage of his medications, having him consult more often with doctors and maybe taking a few days off. She also suggested that inpatient treatment might be an option months later, after the conclusion of the football season, he said. But Sarkisian needed help immediately, not in January, the complaint noted.
Sarkisian boarded a flight Oct. 12 for an inpatient rehabilitation facility. That day, the Los Angeles Times ran an article about Sarkisian’s alleged abuse of alcohol while he was a coach at the University of Washington from 2008 to 2013. During his flight, USC officials sent him an e-mail with a letter attached, firing him from his job.
Sarkisian sued USC Dec. 7, alleging that his termination violated a California state law that, like the ADA, prohibits discrimination based on disability and that USC did not engage in the interactive process for identifying a reasonable accommodation. He is suing USC for $12.6 million for breach of contract.
“The benefit of inpatient treatment is that the person can focus on his or her recovery without the distractions of everyday life under the direct supervision of experts in the field, with no access to alcohol,” the complaint said. “Managed properly, the chances of relapse are extremely low. Outpatient treatment, on the other hand, has a higher risk of relapse for many reasons, including that access to alcohol is not limited during the treatment.”
Carol Mauch Amir, USC’s general counsel, said in a Dec. 7 statement, “Much of what is stated in the lawsuit filed today by Steve Sarkisian is patently untrue.” She added, “The record will show that Mr. Sarkisian repeatedly denied to university officials that he had a problem with alcohol, never asked for time off to get help, and resisted university efforts to provide him with help. The university made clear in writing that further incidents would result in termination, as it did. We are profoundly disappointed in how Mr. Sarkisian has mischaracterized the facts and we intend to defend these claims vigorously.”
Dust Off Policies
If Sarkisian never requested help or resisted offers of help, his claim that USC did not engage in the interactive process would be undermined, noted de Leon. She said the case is “a good reminder for HR to look at accommodation policies and drug-free and alcohol-free policies, and dust them off.” There may be safety issues involved if an employee shows up to work drunk, so an employer should be empowered to act quickly. The employer should determine whether it will offer the employee a second chance if he or she enters a rehabilitation program, she added.
“Be sure you would treat a similarly situated nonalcoholic employee the same way,” Shea said. “Keep an open mind, be flexible and be supportive of the alcoholic employee’s good-faith recovery efforts, but don’t be a pushover by tolerating poor performance or work-related misconduct, even if it’s caused by alcohol abuse.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.