Absenteeism and Alcoholism – When can you fire?

Last week a New York federal appeals court determined that while alcoholism can be considered a disability under the Americans with Disabilities Act (“ADA”), the impairment cannot protect an employee from termination if it affects his ability to show up for work. Bruce VandenBroek sued his former employer, claiming he was terminated because of his alcoholism and for taking medical leave to treat his alcoholism. The court in VandenBroek v. PSEG Power CT LLC disagreed, holding that where regular attendance is an essential job function, the Americans with Disabilities Act and the Family and Medical Leave Act should not shield an employee from termination when s/he is chronically absent from work.

Although regular attendance is an essential job function for most positions, the court noted that it was particularly important to this employee’s job because “reliable employee attendance was . . . essential to ensuring against a power outage or even an explosion.”  Finding the employee failed to prove he was terminated for taking protected leave under the FMLA, the court further ruled he was terminated for violating the employer’s “no call/no show” policy. 

Nevertheless, employers must act with caution when disciplining or terminating a disabled employee for attendance reasons, and be prepared to demonstrate the specific reasons regular and reliable attendance are essential to job performance. The EEOC offers guidance on this specific issue in “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

This also serves as a reminder of the importance of accurate job descriptions. If regular attendance is an essential job function, it should be included in the job description.

2017-03-14T14:46:35+00:00