Monday, August 25, 2014

The difference between alcoholism and drunk under the ADA

A few months ago, I had to fly to Houston for a hearing. After the flight took off, I witnessed the most impressive bit of alcohol consumption I’d seen since my college days a couple of decades ago. The guy sitting next to me ordered four bloody maries, downing all four in a matter of a couple of minutes. He then proceeded to pass out on my shoulder, but that’s a story for another day. That had been the most impressive feet of drinking I’ve encountered in some time … until I read Blazek v. City of Lakewood (6th Cir. 8/13/14).

Jonathan Blazek worked in the in streets, construction, maintenance, and repair department for the City of Lakewood. His job followed a seasonal cycle—leaf pick-up in the fall, snow removal in the winter, and Christmas tree pick-up after the holidays. His job required that he maintain a commercial drivers license.

For reasons that only Blazek could explain, on March 13, 2012, he arrived at work with a 21-ounce bottle of Canadian Mist whiskey stashed in his truck. During his one-hour lunch break, he drank the entire bottle, the equivalent of 14 shots of whiskey. At a post-lunch meeting, Blazek’s boss suspected something was “off” was Blazek. Even though Blazek denied drinking, she took him to the police station, where he blew a 0.132, 65% more than Ohio’s legal limit, and more than three times the limit for CDL drivers.

The City charged Blazek with various violations—being intoxicated at work, driving a city vehicle while intoxicated, drinking at work, and possessing alcohol on City property. Each violated the City’s policy on alcohol in the workplace, and Possessing or consuming alcohol on City property constituted a fireable offense—even for a first-time violator. But, this was not Blazek’s first violation. He admitted as his pre-disciplinary hearing that he had drunk “at work and/or drove City vehicles, on a handful of occasions in the [preceding] several months…. This includes driving a snowplow under the influence during a snow storm.” As a result, Blazek was fired.

Blazek sued the City for disability discrimination, claiming that the City had fired him because of, and failed to accommodate, his alcoholism. The 6th Circuit disagreed:

Plaintiff admitted driving a City snowplow during a storm while intoxicated. Plaintiff further admitted that was not his only time drinking on the job. Plaintiff's violations of City policies dwarf those of the other employees whom Plaintiff offers up as comparisons. The most analogous is Bork, who also operated a City vehicle while drunk—and was fired. Even if we assume that none of these fifteen employees was disabled (and there is no reason to make this assumption), the facts of their cases are simply too different from the facts of Plaintiff's case to be of use. Plaintiff therefore cannot show that Defendant's legitimate reason for terminating him was pretextual.

The ADA protects “alcoholism” as a disability. There is a huge difference, however, between alcoholism, which the ADA protects, and being drunk at work, which the ADA absolutely does not protect. The ADA is never going to cover any employee who uses substances at work, let alone one who’s in an altered state a result.

You are seldom in the wrong for firing an employee who’s drunk at work. It’s plain sad that we need a federal appellate court to remind us.