Recently, University of Southern California football coach, Steve Sarkisian, was terminated from his job as the result of bizarre behavior apparently related to the abuse of alcohol. Earlier this year, at a booster event, he acted irrationally and used improper language. He was suspected of being under the influence during a football game early in the season. Finally, he allegedly came to a team meeting intoxicated in mid-October. One day after being placed on leave, he was terminated, for cause, for what USC considered “is in the best interest of the university and its student athletes.” There may have been similar problems at the school where he previously coached. His conduct, and the way USC reacted, has increased the awareness of the use of alcohol in the workplace, and how the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) address this issue.
The EEOC has issued guidance on the ADA and the use of alcohol (or drugs) in the workplace. The answer to Question 26 of the guidance states that the “ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.” The EEOC also makes it clear that employers can discipline employees, up to and including termination, for poor job performance, even if the cause is the use of alcohol. A warning to employers: the job rules must be enforced consistently: so if an employee who is not under the influence of alcohol is not disciplined for violating a particular policy, but another employee who is under the influence of alcohol is terminated for violating the same policy, this inconsistent treatment may lead to a cause of action under the ADA. Likewise, the ADA allows employers to bar the use or possession of alcohol in the workplace. Again, if such a policy is in place, it must be consistently enforced.
The regulations addressing FMLA leave provide, in 29 C.F.R. Section 825.119 that:
- If the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.
Section 825.119(a) provides that:
- FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.
Practice pointers. Did USC improperly terminate Sarkisian in violation of the ADA? Probably not. Did USC improperly terminate Sarkisian in violation of the FMLA? Probably not. However, employers must be careful when making these decisions: the law and regulations are complex, and each case must be examined based on those specific facts and circumstances. However, there are some general guidelines that employers should follow, if appropriate for their business model:
- Adopt a policy prohibiting the use or possession of alcohol or illegal drugs in the workplace. As we approach the end of the year, be careful when serving alcohol at holiday parties that you don't violate company policy.
- Implement a policy prohibiting substance abuse, both alcohol and drugs.
- If there is an Employee Assistance Program (EAP), use it.
- Have up to date job descriptions setting forth the essential functions of the job. If an employee cannot perform the essential functions of the job, he/she can be disciplined, even if the failure to perform is the result of substance abuse, including alcohol.
- The EEOC permits the use of a “last chance agreement”, which could permit the employee to receive substance abuse treatment in lieu of being terminated. If the agreement is violated, the employee would be terminated.
- It is imperative that employers consistently enforce their policies and procedures: failure to do so could lead to a claim under the ADA, FMLA or other law should an employee be disciplined, up to and including termination, if alcohol or illegal drugs are involved, while non-users who commit the same or similar violation are not disciplined, or have lesser disciplinary measures imposed.
- It is also imperative that employers properly document disciplinary issues, including substance abuse.
- If USC was aware of Sarkisians' problems before the final incident that resulted in his termination, and did nothing to address the problems, they enabled and empowered him to continue on a course that could only have one result: public embarrassment, adverse publicity for the school and football program, and his termination in the middle of the season.