• One Drink too Many
  • November 13, 2013 | Author: Bennett L. Epstein
  • Law Firm: Foley & Lardner LLP - Chicago Office
  • Tom, who worked for a trucking company as a driver salesman, recognized he had a drinking problem and sought leave under the Family and Medical Leave Act (“FMLA”) to engage in rehabilitation. His employer granted the leave.

    As a condition for returning to work at the end of the leave, Tom’s employer required him to sign an agreement affirming that he would never ever again imbibe alcohol - regardless of whether he was at work or off the clock. Unfortunately, the urge overcame Tom and within a month of returning to work, he sought another leave to reenter rehab. Rather than granting him another opportunity for rehabilitation, the trucking company fired Tom because he breached his agreement.

    Tom sued, contending that the employer violated the Americans with Disabilities Act, the FMLA and Pennsylvania state law. Tom argued that he suffered from a disability (alcoholism), his employer perceived that he was an alcoholic and that his employer discriminated against him due to his disability by imposing a greater burden on him (a lifetime ban on the bottle) than the employer imposed on his co-workers who were not alcoholics. The Third Circuit Court of Appeals, however, did not agree with Tom.

    The appellate court adopted his employer’s position that it did not fire Tom because of his addiction, but rather because he broke his word. While the court agreed that Tom was held to a standard of conduct which differed from the standard applied to other employees, the distinction was based on Tom’s agreement and conduct. Thus, the court found it was not a pretext for discrimination.

    Even though the Third Circuit had little compassion for Tom’s drinking and it gave great deference to the back to work agreement, broad prohibitions on drinking outside the workplace can nonetheless violate state discrimination and disability laws. For example, the Illinois Right to Privacy in the Workplace law prohibits employers from refusing to hire an applicant or imposing any adverse employment actions on an employee because the person uses lawful products off the premises of the employer during nonworking hours. As long as drinking alcohol remains legal, the trucking company might not have been able to enforce its agreement in Illinois.