Worker Fired Due to Safety Concerns Not Protected by ADA and FMLA

A worker suffering from “acute alcoholic pancreatitis” who failed a breath alcohol test upon his return from FMLA leave lost on summary judgment for his ADA and FMLA claims.   The plaintiff operated machinery that melts plastic at very high temperatures.

Accordingly, plaintiff was subject to many safety requirements to not only protect himself but also his fellow employees.

During his employment he had requested and had received FMLA leave for pancreatitis on several occasions; each prior instance without incident.  In April of 2013, plaintiff was granted FMLA leave due to injuries sustained in a bar fight.  He returned to work the following month but had to again request FMLA leave a week later to get treatment at a hospital.  While on that period of FMLA leave, plaintiff’s doctor submitted certification of short term disability, identifying “acute alcoholic pancreatitis” as the diagnosis.

Prior to the last above mentioned period of FMLA leave, plaintiff’s employer did not know that his condition was related to alcohol abuse.  After a review of the diagnosis, plaintiff’s history of pancreatitis and information that he was previously in a bar fight, a Health and Wellness Manager reviewing the doctor’s certification became concerned that the employee was potentially consuming alcohol at work.   Based on those concerns, the Health and Wellness Manager sent correspondence to the HR Manager, noting his condition, the bar fight, and her concerns about “safety and productivity.”  After discussions with legal counsel and other managers it was decided that when plaintiff returned from leave he would be sent for alcohol testing.

On that first day back to work on June 15, 2013, plaintiff was taken to the hospital for testing including two breath alcohol tests.  He blew outside of the limit for Indiana on the first test so he was taken back to work and was sent home, being instructed not to drive.  Notwithstanding that direction, he tried to drive and was stopped before leaving the property.  Three days after the incident, he was fired.  He later filed suit, alleging his employer violated the ADA and FMLA.

Among other claims, plaintiff argued disclosure of his medical diagnosis for the purpose of drug and alcohol testing and termination was a violation of the ADA. Forutnately for the employer, the court disagreed, finding that the employer was concerned for the safety of plaintiff and his fellow employees, especially considering the dangerous aspects of plaintiff’s job duties. The court rejected plaintiff’s argument that the alcohol test was an impermissible medical examination under the ADA, because the purpose of the test was to determine whether he arrived at work under the influence of alcohol, not to determine if he had a disability. The court also rejected plaintiff’s argument that even though the employer was aware of his diagnosis, it was not enough to establish that the employer regarded him to be disabled.  The employer’s concerns were not with plaintiff’s medical condition or disability, but with the potential that he might hurt himself or others due to reporting to work under the influence of alcohol.

Plaintiff’s FMLA claim was dismissed as well, specifically because there was no causal connection between plaintiff’s FMLA leave and the alcohol test.  The employer was able to present evidence that other employees who had not taken FMLA leave were disciplined for drug and alcohol violations.

Although it may sound strange, employers should be aware of the requirements imposed by the FMLA and ADA relative to sensitive issues such as alcohol and drug abuse in the work place.

For more information on the FCRA and its application in the employment law field, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.