Can I be fired for being an alcoholic?

If you were fired because your employer knows that you are an alcoholic, but you have never had a drink at work, showed up intoxicated nor let your drinking interfere with a qualification of the job (i.e. suspended drivers license), then no, you cannot be fired. If you were fired because you were taking time away from work to attend a rehabilitation program, then, in most cases, no, you cannot be fired. If you showed up to work intoxicated or found drinking at work, then yes, you can be fired. 

If your employer has more than 15 full-time employees, it must comply with the Americans with Disabilities Act (ADA). If your employer has more than 50 employees within a 75 mile radius, it must comply with the Family and Medical Leave Act (FMLA).

The ADA protects employees looking for a leave of absence to attend rehabilitation. It does not protect employees that are intoxicated at work, drinking at work, nor employees who no longer qualify for the position due to the drinking (i.e. suspended license if you are a truck driver).

The FMLA protects employees by allowing for up to 12 weeks of unpaid leave to treat the alcoholism. If you are seeking professional help and need to be away from work for an extended period of time, but no more than 12 weeks, you cannot be terminated. This law does not protect you if you are working while intoxicated or drinking on the job.

Intoxicated at Work

Employers are not required to tolerate drinking on the job nor employees who are not qualified to perform the essential functions of a job due to drinking. If you show up to work intoxicated, your employer will have a good argument that you are not qualified to perform the essential functions of your job. An employer may terminate employment to an alcoholic whose use of alcohol adversely affects job performance to the extent that s/he is not ‘qualified.’ It is very unlikely that you will have any protection under the ADA or FMLA if you are intoxicated or drinking at work.

Time Away From Work

If you can prove that you are “substantially limited in a major life activity” due to your drinking, your employer must provide a reasonable accommodation under the ADA. A reasonable accommodation usually includes an appropriate leave from work for rehabilitation. It does not include time away from work because of a hangover. The rehabilitation must be an approved program. “Substantially limited in a major life activity” includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and/or limitations of bodily functions.

You can also request time away from work under the FMLA if you are seeking to treat your alcoholism. If you miss work because you are intoxicated or are experiencing a hangover, you are not protected under this law. FMLA allows only for time away for professional treatment.

Be aware that courts have not required employers to give the employee a second chance under the ADA if the employee suffers a relapse after a rehabilitation program. You may get another 12 weeks of FMLA, but you will have to wait until the new FMLA year. Some employers start the FMLA year on the first day of your leave, some start per calendar year and others a fiscal year. If you were fired for attending a rehabilitation program the first time around, you should definitely contact an employment attorney.

Also, you must request the leave. Do not expect your employer to assume you are taking leave for treatment.

The words and other content provided in the blog, and in any linked materials, are not intended and should not be construed as professional advice (please read the Terms and Conditions for additional information).

Alicia H. Lillegard, Esq.

Alicia Lillegard has over 20 years of experience in employment law, human resources and insurance, working with with large blue chip companies, startups, and not-for-profit organizations. Ms. Lillegard is currently Managing Director of New England Human Capital, a human resources consultancy which advises small and midsize businesses on Human Resources compliance, including employment procedures, employee relations and employee benefits. She holds degrees from Loyola University Chicago and John Marshall Law School.

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