Disabled with Alcoholism or Drunk on the Job?

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Disabled with Alcoholism or Drunk on the Job?

By Kathy Jean Schultz 01/27/17

Some say employers shouldn't be able to terminate employees for alcoholism because it is a disease. But does claiming addiction as a “disability” fuel negative stigmas?

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A disabled sign
Wrongful grounds?

“If (she) had had cancer … everyone would have understood that it is wrong and illegal to punish an employee for symptoms or behavior that are products of their disabling disease.”

On Sept. 13, 2016, Santa Barbara, California attorney Janean Acevedo Daniels issued a statement including the above sentence, claiming that her client, a local TV news anchor, had been wrongfully fired by her TV station following the newscaster’s arrest on suspicion of drunk driving. Daniels is representing the news anchor in a wrongful termination case. Daniels states that her client is an alcoholic, and that she therefore should not have been fired for having that disability.

One year before, in September 2015, the newscaster’s car had been reported to be driving southbound in the northbound lane of a freeway, U.S. Highway 101, at night. Police could not find her on the freeway, but did later locate her in a parking lot off the freeway, and they allege she assaulted an officer while being evaluated for sobriety.

Prior to filing the wrongful termination suit, the newswoman had pleaded no contest to drunk driving, assaulting an officer and related charges. She was sentenced to 120 days in jail and probation, but never served jail time. Per a plea deal, she served house arrest for 50 days in an electronic-monitoring program. The fired anchor’s husband is a retired Santa Barbara County Superior Court judge, and local reaction was swift and controversial, given her husband’s judicial status and the fact that most drivers facing the same charges would typically serve some time in jail.

The newswoman had previously been arrested in 2013, on suspicion of public intoxication, two years before the Hwy. 101 incident. At that time, the TV station gave her time off from her job to address her medical issues. No conviction followed that arrest, but due to her husband’s high profile, her troubles with alcohol were reported on several local news sites.

Daniels alleges her client was “denied reasonable accommodation of her disability,” per the Americans with Disabilities Act, which became federal law in 1990 and is known as the ADA.

Daniels maintains the TV station owners violated privacy rights when they forced the woman to sign a “Last Chance Agreement” after the 2013 arrest. The agreement had required her to submit to drug and alcohol testing in order to keep her job.

“Alcoholism is both a disease and a legally-protected disability under state and federal law,” Daniels wrote. “When an employee is struggling with a disabling medical condition, we expect their employer … to reasonably accommodate that employee’s disability as the law requires.”

One interpretation of the ADA concerns “reasonable accommodation” employers are mandated to provide. This might include something like allowing a service dog in the workplace for a blind employee, or providing ramps instead of stairs for wheelchair-bound employees.

“Every employee has a right to be afforded the dignity and protection that these laws provide, whether they are disabled by a physical condition like cancer, by a mental illness, or by alcoholism,” Daniels states.

Questions arise about the definition of disability if the employee chooses not to follow a doctor’s orders, or declines needed treatment, and then perhaps falls down at work or is otherwise unable to function because, for example, a tumor has spread. At what point is the employer no longer mandated to provide “reasonable accommodation” if the employee declines treatment?

If the disability is alcoholism and the employee does not cooperate with treatment—getting counseling, committing to rehab, or participating in a recovery program—is that the same as not getting recommended surgery, or not taking needed medication?

The argument supporting addiction as a disease has often seemed murky from a legal viewpoint, but it is spawned by the medical perspective that addiction should be defined as a disease, and the accompanying perception that if it’s a disease it’s therefore a disability. The American Medical Association began defining alcoholism as a disease in 1956, and confirmed that definition in detail in a 1992 Journal of the American Medical Association article.

The disease model was also described by an American Society of Addiction Medicine article in 2011:

“Addiction is a primary, chronic disease of brain reward, motivation, memory and related circuitry. Dysfunction in these circuits leads to characteristic biological, psychological, social and spiritual manifestations. This is reflected in an individual pathologically pursuing reward and/or relief by substance use and other behaviors. Addiction is characterized by inability to consistently abstain, impairment in behavioral control, craving, diminished recognition of significant problems with one’s behaviors and interpersonal relationships, and a dysfunctional emotional response.”

The ADA defines disability as a physical or mental impairment that “substantially limits one or more of that person's major life activities, an individual who has a record of such an impairment, or an individual who is regarded as having such an impairment.”

Despite such scientific precision, and as time passes since the 1990 passage of the ADA, courts have seen it differently. In many 2016 cases, courts ruled specifically that applicants for Social Security disability benefits cannot be considered disabled for purposes of benefits if alcoholism or drug addiction is a contributing factor.

In a 2014 case, a terminated employee alleged that he suffered from the disability of alcoholism, that his employer knew about this disability because he had to drive as part of the job, and that he lost his driver’s license due to drunk driving. At the time of his license suspension, the employer provided him the ADA-required “reasonable accommodation” by not assigning him driving duties. Therefore, he alleged, the employer knew about his drinking. The employer demoted him and later terminated him.

His reasoning could be described as circular. He alleged alcoholism caused him to drive under the influence of alcohol, driving under the influence caused him to lose his driver's license, and losing his driver's license caused him to be demoted. He alleged that alcoholism was the cause of his being demoted; therefore he was discriminated against by his employer on account of a disability, in violation of the ADA.

The court ruled that although alcohol addiction is recognized as an "impairment" under the ADA, it is not technically a disability. The court addressed the language about a “bridge” he saw between his alcoholism and his demotion.

“(About) … the bridge that (the terminated employee) seeks to construct between his alcoholism and his demotion. If being an alcoholic he could not have avoided becoming a drunk driver, then his alcoholism was the only cause of his being demoted … But (his) alcoholism was not the only cause of his being convicted of drunk driving.

“Another cause was his decision to drive while drunk.”

Circular arguments and charges of employer responsibility can build up disdain amongst employers, insurers, and taxpayers footing courts’ bills. Such attempts to wrap the disease model—however greatly solidified by neuroscience—around an employee perceived as unaccountable could fuel stigmas that burden not only the newly-sober jobseeker, but also recovering addicts and alcoholics who show up for work sober day after day.

While the case of Daniels’ client was dismissed in January 2017, the issue of employer responsibility was a tragic factor in another Santa Barbara case. In December 2013, a female pedestrian was killed by drunk driver Raymond Morua, who is serving a 20-year prison sentence for her death.

An army veteran who had served in Iraq, Morua had been president of the University of California Santa Barbara’s Student Veterans Organization while earning his degree there after returning from three years of service, and was on the Veteran’s Services Advisory Committee, the Student Veterans of America National Leadership Council and the Veterans Coordinating Council. Morua had a previous arrest on suspicion of drunk driving before the fatal accident, as well as other legal difficulties since leaving the Army, and he had spoken publicly about the difficulties of returning to civilian life, including about drinking.

Working since 2011 as an aide to Congresswoman Lois Capps, (D-Calif.), Morua had just left a newspaper’s Christmas party before the accident. The victim’s family sued Morua, Capps and her employer, the U.S. House of Representatives. The suit was settled with a payment of $2.5 million to the family by the U.S. government, because the Capps’ staffer was allegedly intoxicated while on the Congresswoman’s payroll.

In a June 2014 Santa Barbara News-Press editorial, the victim’s father labeled the accident a “tragic death at the hands of the representative of Rep. Lois Capps.” In April 2014, he told the News-Press, “Raymond Morua may have pulled the trigger. But I really feel that Lois Capps, if not loaded the gun, she gave him the ammunition. She put him in situations where he's going to be drinking. It's a social lubricant and he's out there for her working those rooms. He also talked about his problem openly. If she didn't know he had an alcohol problem, then she's incompetent. In any case, she needs to be held accountable."

© 2016 by Kathy Jean Schultz

www.kathyjeanschultz.com

Twitter: kjschul

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