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Ask the Lawyer By: Daniel A. Gwinn, Esq.

| March 31, 2017


QUESTION: One of my employees told me a year ago that he is a recovering alcoholic. He never had any issues at work, until recently: He’s been late five times in the last month, and two projects he worked on are full of careless mistakes. I think he’s fallen off the wagon. I spoke with him about his tardiness, and the errors, but he said he had been having car trouble and said he’d look into the mistakes. I told him he was on probation, and will be terminated if the problems continue. One of my friends said the guy can’t be fired because alcoholism is a disability, and he’s protected under the Americans with Disabilities Act. Seriously?

ANSWER: Alcoholism is a disability under the Americans with Disabilities Act (the “ADA”), but that does not mean that an alcoholic worker who fails to meet legitimate job requirements is immune from termination. The ADA does not protect workers, alcoholic or not, from the legitimate expectation that they will come to work sober, will perform their work while sober, and will refrain from drinking on the job.

The goals of the ADA are to ensure people with disabilities are provided reasonable accommodations that will enable them to meet job requirements, and to protect disabled workers from adverse employment actions based on assumptions about their disability. The ADA does not allow disabled workers to get away with poor job performance, or with violating reasonable work policies. For example, in the context of alcoholism, a reasonable accommodation might be to allow the worker to leave early on occasion to attend counseling (on the condition he or she make the time up). Allowing an alcoholic worker to routinely come in late, or drunk, would not be a reasonable accommodation under the ADA.

However, it is not clear, based on the facts you presented in your question, that your worker has come to work or worked under the influence, or that he is to blame for the errors in the projects he worked on, if others were involved in the project as well. And, before you decide to uphold his probation – or fire him — you need to make sure that you are not treating him differently than you would an employee who is not alcoholic. What is your normal tardy policy? How many times can an employee be tardy before being written up? If probation is the usual company response to an employee who has been tardy five times in a month, the probation should easily survive an ADA challenge. If probation is not the usual response, you need to make sure that your employee’s status as an alcoholic did not play a part in your decision.

If, after investigation, you find that your worker was responsible for the errors in the project, and if a worker who performed such sloppy work would normally be placed on probation or fired, then, again, you have no worries under the ADA. But if you made assumptions about poor performance, based only on your employee’s alcoholic status, then the ADA would come into play.

You see, while the ADA does not excuse poor performance or drinking on the job, it does prohibit discrimination against disabled workers based only on beliefs about their disability.

Note, that while the ADA does protect an active alcoholic from job discrimination based on disabled status, no such protection is extended to a drug addict who is actively abusing drugs – even if such abuse occurs only in off-duty hours. And, of course, for many jobs – airline employees, truckers, police officers, etc. – use of drugs can warrant immediate termination.

To ensure you have up-to-date information on your rights as an employer under the ADA, you may wish to consult an attorney. The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile

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