Do Addicted Employees Have Too Many Rights?
(page 2)Still, from the bosses' standpoint, the requirement to grant extended leave plus benefits to an employee who has made a mess of things may be hard to stomach. And they may become more reluctant to hire people in recovery. Will this make it harder for all ex-addicts to find work?
“This case is [primarily] about long-term disability insurance carriers, so I'm not sure that it will have any effect at all on employers,” said Professor Samuel Bagenstos of the University of Michigan, an expert on disability law. “Maybe at the margins—it could increase the cost of long-term disability coverage, but not by much.”
Pro-business advocates disagree. The Cato Institute’s Walter Olson warns that it will not be so simple for insurance companies to exclude coverage for relapse risk. "If the court adopts an over-liberal rule in a coverage dispute, insurance companies usually can rewrite future policies to protect themselves from some or all of the unsought risk,” he wrote on his blog, OverLawyered. “ [But in this decision, that’s] not so with the regulated parties under the ADA.”
“I am particularly worried about the ‘regarded as disability’ corner of ADA law," said Thomas Gies of Crowell & Moring, who frequently litigates on behalf of employers. “A plaintiff [could have a case] asserting that the employer’s refusal to let plaintiff continue in a [public] safety–sensitive job—airline pilots, bus drivers, the captain of a vessel like the Exxon Valdez—is unlawful because the employer's worry about a possible relapse amounts to ‘regarding’ the person as ‘disabled.’”
In the real world, the application of the ADA is often theoretical. Employers hold a trump card: a Last Chance Agreement.
Ruling or no, recovering workers can get fired—or not rehired—under the ADA, Bagenstos said. “As for what employees in recovery can do to keep their jobs in the event of a relapse, the law does not provide much protection, at least when illegal use of drugs [is the issue],” he said. “The ADA protects an employee who is currently participating in a supervised rehabilitation program against dismissal. If an employee relapses, the employer has the legal power to fire.”
The situation is different with alcohol because it is legal. “An employer can't fire an employee for being an alcoholic or for using alcohol outside of work—even if the alcohol use constitutes a relapse,” Bagenstos said. “But an employer can prohibit employees from using or being under the influence of alcohol in the workplace.”
The risk of relapse may not be theoretical, as the court opined, but in the real world the application of the ADA often is. That’s because employers hold a trump card called a Last Chance Agreement. An LCA is exactly what its name suggests: a written contract between an employer and a substance-abusing employee who has committed a fireable offense that gives the employee one last chance in lieu of being axed—but only if you agree to certain conditions.
Say you miss a week of work because you were on a bender. When you show up at your job on Monday, all hang dog, your boss can show you the door—if you have not been previously diagnosed as an addict (and therefore have an ADA-defined “disability”). But if you do have an addiction diagnosis—and maybe even if you’re just a valued employee who previously made a serious effort to recover—your employer may offer you an LCA. (If this is a first offense, your employer has to do so.) The terms of this contract will certainly require you to stay sober; additional conditions often include successfully completing a treatment program and submitting to alcohol or drug testing. An LCA can last five years or more. But it’s a sweet alternative to getting canned.
If you slip up, of course, you’re out on your ass. Don’t even think of running to a lawyer waving the ADA handbook and crying “Discrimination!” Addiction may be defined as a disability, but you kissed that argument goodbye when you signed the LCA—and the conditions, which were probably not unreasonable—that tied your continued employment to your continued sobriety. (If you insist on suing, you'll probably have to endure the excruciating public airing of all your previously "confidential" dirty laundry.)
The take-away? In certain circumstances—an exceptionally unaccommodating employer coupled with exceptionally challenging working conditions, throw in a hard-ass insurance company just for fun—if you’re in recovery, you may be able to shake down up to 36 months of disability benefits. But you’ll probably have to sue, which can eat up years and savings and cause serious headaches. It may even be one of the few endeavors that is harder than getting and staying sober.
Ted Rall is a syndicated columnist, cartoonist and war correspondent. His most recent book is The Book of Obama: How We Went From Hope and Change to the Age of Revolt. Check out his blog here.