Question: We have an employee who requested time off because he was in jail due to a Driving Under the Influence (DUI) conviction. We want to take action due to his excessive absenteeism. Do we have to grant him time off as a reasonable accommodation for alcoholism?
Answer: No. The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate a disability, such as alcoholism, but the ADA has a unique rule for bad behavior related to the use of alcohol or illegal drugs.
Disability Rights and Alcohol
Under the ADA, an employer “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” In your employee’s case, the incarceration for a DUI is for alcohol-related misconduct, and not for the disability itself. Therefore, if you have an attendance policy that addresses unexcused absences, you may hold the employee accountable for those unexcused absences while the employee is incarcerated.
Difference Between Disability and Misconduct Caused by Disability
Also, the U.S. Ninth Circuit Court of Appeals has noted that there is a distinction between misconduct caused by a disability and the disability itself, in the context of alcoholism and illegal drug use. Therefore, although your employee’s DUI conviction may be related to his alcoholism, you are not required to reasonably accommodate his continued absence while he serves out his sentence. Recently a federal district court in Washington ruled in favor of an employer that dealt with a similar situation (McElwain v. The Boeing Co., WD Wash, March 2017).