Alcohol use and drug use are specifically exempted from coverage under the Americans with Disabilities Act. See Americans with Disabilities Act, Sec. 12114. This section provides that a person who is abusing alcohol or drugs may not qualify for coverage under the ADA.
But, alcoholism is a disease. So, treatment for alcoholism is covered under the ADA. See Williams v. Las Vegas Police Dept., 18 A.D.Cases (BNA) 457 (D.Nev. 7/25/06). In this case, Police Officer Ron Williams took time off off from work for a 30 day residential treatment program. He told his supervisor he was being treated for alcoholism, but asked that it be kept confidential. But, his diagnosis was not kept confidential. Two years later, Officer Williams went to a local bar to have a drink with a co-worker. The co-worker, a police sergeant, had a one car accident on the way home. Mr. Williams was also investigated. He was found at fault for driving after drinking, driving while intoxicated, and for misleading the internal affairs investigation. Mr. Wiiliams denied being intoxicated. Despite his denial, he was suspended for 120 hours.
A few months later, Officer Williams applied for a captain position and was turned down. Officer Williams filed suit under the ADA. The department moved to dismiss his claims. Officer Williams argued that his suspension was out of line when compared to similar offenses by other officers. The officer pointed to a discipline matrix that specifically said that the appropriate punishment for driving after drinking was a written reprimand. Mr. Williams pointed out that when he appealed his misconduct suspension, the labor board found that the Deputy Chief acted out of prejudice due to the officer’s alcoholism diagnosis. Based on this evidence, the district court found that the department may have taken this action due to his disability, not due to misconduct. So, the court denied the motion to dismiss.
An employer may, however, require an employee who has taken time off for alcohol treatment to take subsequent alcohol tests. The employer may require such tests only if the employer has a reasonable belief based on objective evidence that the employee will pose a direct threat in the absence of such testing. See EEOC Enforcement Guidance on ADA, at question 19. That is, the employer must believe there is some danger involved before requiring such tests. Such testing should occur often enough to address valid concerns, but they should not occur so frequently that they become harassing or intimidating. Id. In the Enforcement Guidance, the EEOC provides an example of a lawyer who returns to work after attending a residential treatment program. Upon his return, the employer may not require periodic testing without some basis to believe the lawyer has relapsed, says the EEOC. Id. So, at least according to the EEOC Enforcement Guidance, an employer cannot require alcohol testing after residential treatment – unless the employer has something more than mere suspicion.