EEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Qualification standards; Permanent Abstention from Drinking Alcohol
August 28, 2014
Dear [ ]:
This is in response to your June 5, 2014, letter to the Equal Employment Opportunity Commission (EEOC or Commission) asking whether it is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment. For the reasons discussed below, it does not appear that such an across-the-board policy would comply with Title I of the Americans with Disabilities Act (ADA) under the particular circumstances described in your letter. We emphasize, however, that this letter does not constitute a finding of discrimination, which could only be made following the full investigation of a charge.
You indicate that you represent a union whose members are employed by a public utility (employer) that operates nuclear power plants regulated by the U.S. Nuclear Regulatory Commission (NRC). Pursuant to NRC regulations, the employer is required to implement procedures for screening employees it intends to grant unescorted access to secured or critical areas of nuclear power plants to assure that they are “trustworthy and reliable” and do not constitute “an unreasonable risk to public health and safety or the common defense and security, including the potential to create radiological sabotage.” See 10 C.F.R. §§73.56(b) and (c).
You state that the union and the employer entered into a “two strikes and you are out” agreement that provides that the employer will conduct “random, for cause, and follow-up” alcohol and drug testing of all employees and may discharge any employee after a second confirmed positive alcohol test at work. The employer also has imposed an additional requirement on employees who were referred (or referred themselves) to the Employee Assistance Program (EAP) for counseling.1 Based on an estimate of the amount and frequency of their alcohol consumption, an EAP counselor deems some employees to be alcoholics (or as having ongoing problems with alcohol) and issues them a letter, using language prescribed by the employer, recommending that they permanently abstain from drinking on and off the job as a condition of being granted or maintaining unescorted security access.2 You state that the employees who have been given permanent alcohol abstinence letters can be terminated for off-duty drinking even though: they never tested positive for alcohol (or only tested positive once); 3 there was no evidence of poor job performance; and they never were suspected of being impaired while at work
II. Qualification Standards Under Title I of the ADA
Although the ADA generally leaves it to an employer’s business judgment to determine who should be hired, promoted, or terminated, it prohibits the application of qualification standards that screen out, or tend to screen out, individuals on the basis of disability unless they are job related for the position in question and consistent with business necessity (i.e., actually necessary for effective job performance). See 42 U.S.C. § 12112(b)(6) and 29 C.F.R. §§ 1630.10 and 1630.15. The ADA also prohibits employers from using safety-based qualification standards to screen out individuals with disabilities without showing that such individuals pose a direct threat (i.e., a significant risk of substantial harm) that cannot be reduced or eliminated with a reasonable accommodation.42 U.S.C. § 12113(a)-(b) and 29 C.F.R. § 1630.15(b)(2). The determination that an employee poses a direct threat must be based on risks actually posed by a particular individual and not on generalizations about the individual’s disability.
Here, the employer purportedly has imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job. Thus, your letter appears to raise the following questions: (1) whether application of the standard would screen out employees on the basis of disability; and, if so (2) whether the employer can show that the standard meets either the business necessity or direct threat defense.
Whether the Standard Screens out Individuals on the Basis of Disability
Under Title I of the ADA, an individual with a disability is a person who: has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. See 29 C.F.R. §1630.2(g)(1)(i)-(iii). As a result of the ADA Amendments Act (ADAAA) that broadened the definition of disability, it is now easier for individuals with a broad range of impairments, including alcoholism, to establish coverage.4
Your letter does not state whether employees subject to the total abstinence standard have (or ever had) a clinical diagnosis of alcoholism or if they described how or to what extent drinking alcohol affects their lives; rather, you indicate that EAP counselors deemed them to be alcoholics (or as having ongoing problems with alcohol) based on an estimate of the amount and frequency of their alcohol consumption.5 Accordingly, we will presume that some of these employees meet at least one prong of the ADA definition of disability and, therefore, that application of the policy would screen them out based on disability because their failure to agree to, or their violation of, the policy would subject them to termination.
1. Job-Related and Consistent with Business Necessity
Whether an employer can show that requiring employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job is job-related and consistent with business necessity depends on whether the standard accurately predicts the ability of such employees to perform the essential functions of their jobs. Several facts suggest that the requirement, as applied, does not meet the business necessity standard.6 Additionally, because your letter does not indicate whether NRC regulations require the employer to impose the total abstinence qualification standard, we do not know if it would have a “conflict with other federal laws” defense.7 We, therefore, are assuming for purposes of this analysis that there is no such requirement in the NRC regulations.
First, the employer applies its total abstinence requirement only to employees who are alcoholics or are perceived to be alcoholics regardless of whether they have tested positive for or been under the influence of alcohol at work. By contrast, under the “two strikes and you are out” agreement, employees who have tested positive for alcohol are not prohibited from drinking off the job and are not terminated unless they test positive for alcohol a second time. In our view, allowing some employees to continue working after a failed alcohol test while requiring other employees who have never failed an alcohol test to abstain from alcohol off the job as a condition of employment undermines any contention the employer might make that requiring total abstinence is necessary for effective job performance or ensures that employees are “trustworthy and reliable.” Second, there is no evidence that employees who are deemed to be alcoholics ever have had any performance or work-related conduct issues. Even if it is appropriate to require some employees to abstain from alcohol, or to subject certain employees to more frequent alcohol testing,8 the employer would have to make this determination by doing an individualized assessment based on a particular employee’s history rather than requiring all employees who are alcoholics or perceived to be alcoholics never to drink as a condition of keeping their jobs.9
2. Direct Threat
You indicate that the employer does not claim that alcoholism has impacted any employee’s work performance but, rather, merely speculates that employees who are alcoholics or perceived to be alcoholics “may one day come to work under the influence of alcohol (even though [they have not] for 15 to 30 years) and somehow present a risk to [themselves] or others” because they have unescorted access to a nuclear power plant. If the employer has imposed the permanent abstinence requirement based on its concerns about safety, it must demonstrate that the standard is necessary in order to avoid a direct threat (i.e., a significant risk of substantial harm to the individual or others). See 29 C.F.R. part 1630, app. § 1630.15(b) and (c). The determination must be based on an individual’s present ability to safely perform the essential functions of the job taking into account the most current medical knowledge and/or best available objective evidence. 29 C.F.R. § 1630.2 (r) and part 1630, app. § 1630.2 (r). Further, in determining whether a particular individual poses a significant risk of substantial harm, an employer should consider the: (1) duration of the risk; (2) nature and severity of potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm. Id. Since the employer’s requirement does not allow for an individualized assessment of the risks that particular employees pose, it does not appear to meet the direct threat standard.10
We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.
Christopher J. Kuczynski
Acting Associate Legal Counsel
1 According to your letter, most of the referrals to EAP are triggered by an employee’s arrest for off-duty driving under the influence or for transporting an open container of an alcoholic beverage. In other instances, employees voluntarily sought EAP counseling for an alcohol-related problem that they have to report when applying for unescorted access clearance.
2 You state that the employer specifically instructed the letters from the EAP counselors to include the following wording: “Due to the client’s history and clinical presentation, complete abstinence from the use of alcohol and and/or any other intoxicating substances at all times and under all circumstances, including during working hours and non-working hours, weekends, and holidays, is recommended.”
3 Although employers may comply with other federal laws and regulations regarding alcohol use, including regulations for safety-sensitive positions established by the NRC, it is not clear whether NRC requires the employer to conduct alcohol testing; nor do you ask if such testing is lawful. This letter, therefore, will not address whether, or to what extent, employers may test employees for alcohol use.
4 Even prior to the ADAAA, several courts held that alcoholism is a covered disability. See e.g., Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996)(court flatly stated, without discussion, that alcoholism “is a covered disability”). See also Adamczyk v. Baltimore County, 1998 U.S. App. LEXIS 1331 (4th Cir. 1998) (alcoholism is covered under the Rehabilitation Act); Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir. 1997), cert. denied, 118 S. Ct. 441 (1997) (where plaintiff could show she was regarded as being an alcoholic, she was “disabled within the meaning of the ADA”); Office of the Senate Sergeant-at-Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102 (Fed. Cir. 1996) (“it is well-established that alcoholism meets the definition of a disability”).
5 According to the sample abstinence letter you provided, EAP counselors are required to provide the following information about each referred employee: presenting problem, history of use, diagnosis, and prognosis.
6 Some courts have held that the business necessity defense applies when an employer imposes an across-the-board safety-related standard to all applicants and employees, while the direct threat defense is appropriate only when an employer takes an action against an individual for safety reasons in absence of an across-the-board standard. See e.g., EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000)(the direct threat defense is appropriate only where the issue revolves around the decision to hire or fire a particular individual): see also Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001)(the direct threat defense to a claim of disability discrimination under the ADA was meant as a very narrow permission to employers to exclude individuals with disabilities not for reasons related to the performance of their jobs, but because their mere presence could endanger others with whom they work and serve). Neither the statute nor EEOC’s regulations make such a distinction. Indeed, 42 U.S.C. § 12112(b)(6) states that the “business necessity” defense may apply to qualification standards, tests, or other selection criteria that screen out “an individual with a disability,” as well as to standards, such as an across-the-board exclusion, that would screen out “a class of individuals with disabilities.”
7 Pursuant to 29 C.F.R. § 1630.15(e), it may be a defense to a charge of discrimination that a challenged action is required or necessitated by another federal law or regulation.
8 See Enforcement Guidance on disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) at Q&A 19, available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html (July 27, 2000) (describing circumstances under which employer may be able to conduct random alcohol testing of employees in certain jobs who have recently completed alcohol rehabilitation).
9 Employers may require an employee who is an alcoholic or perceived to be an alcoholic to meet the same job-related requirements or standards of performance and conduct as all other employees. An employer, therefore, may have a qualification standard prohibiting all employees from drinking alcohol in the workplace or being under the influence of alcohol while at work.
10 See also Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002)(holding that employer should have conducted an individualized assessment as to whether a diabetic applicant for a police officer position could safely perform the essential functions of the job, rather than applying a blanket exclusion of all individuals with diabetes from performing jobs that required driving).
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