November 15, 2013

Substance and alcohol abuse is a serious workforce issue confronting employers.  Ramifications range from absenteeism and reduced productivity to increased health care costs, workplace injuries and accidents.  To combat substance abuse, employers should consider establishing a drug and alcohol-free workplace with a written policy.  Employers also should consider utilizing return-to-work agreements.  Under such agreements, an addicted employee, following the completion of a rehabilitation program, agrees to abstain from alcohol or drugs as a condition of returning to work.  A return-to-work agreement should specify the employer’s expectations of the addicted employee, as well as the consequences if the expectations are not met.  Importantly, courts increasingly are upholding such agreements.

In Ostrowski v. Con-way Freight, No. 12-3800, 2013 WL 5814131 (3d Cir. Oct. 30, 2013), the plaintiff, a driver sales representative, requested a leave of absence to attend an alcohol rehabilitation program.  After completing the program, the employer required the plaintiff to enter into a return-to-work agreement as a condition for returning to work.  The agreement prohibited alcohol use, regardless of whether the plaintiff was on or off the clock, and warned the plaintiff that any violation of the agreement could result in termination.  After signing the return-to-work agreement, the plaintiff relapsed and was terminated.  The plaintiff sued, alleging that his termination violated various statues, including the Americans with Disabilities Act (“ADA”).

The U.S. Court of Appeals for the Third Circuit held that the employer did not discriminate against the plaintiff on the basis of his disability (alcoholism) when it fired him for violating the return-to-work agreement.  The Third Circuit noted that the Sixth and Eighth Circuit Courts have held that employers do not violate the ADA simply by entering into return-to-work agreements that subject addicted employees to different standards from other employees.  The court further noted that the return-to-work agreement did not preclude alcoholic employees from working for the employer; rather, it prohibited alcoholic employees subject to the agreement from consuming alcohol.  This decision follows other courts that have held that a properly constructed return-to-work agreement affords certain protections to employers when an addicted employee is fired for relapsing.

Conclusion

While courts are increasingly upholding properly constructed return-to-work agreements, employers should be mindful that the issues surrounding substance abuse and addiction are complex.  Accordingly, employers should consult with counsel before entering into any return-to-work agreement to ensure that the agreement is compliant with state and federal law.