Can an Employer Prohibit Off-Duty Drinking by Alcoholic Employee?

Prohibiting Off-Duty Drinking for Alcoholic Employees? Reasons Employers Should Carefully Consider Policies

Recently, a union representing workers at nuclear power plants requested an informal opinion letter from the Equal Employment Opportunity Commission asking whether an alcohol policy of the public utility violated the Americans with Disabilities Act. The policy included drug and alcohol testing and, at issue, employees who were participants in the company’s alcohol counseling program were prohibited from consuming alcohol on- or off-duty.

The EEOC found fault with the policy because it would screen out those with (or perceived with) alcoholism (a disability under the ADA) on the basis of their disability. Even though the public utility is required by U.S. Regulatory Commission regulations requiring the utility company to screen employees with access to critical areas to ensure they are trustworthy and reliable and do not become an unreasonable risk to health and safety, the EEOC opined that the policy was not individualized enough. A company may include rules which would screen out in such cases, but only when the reasons are job-related and consistent with business necessity. Because the perpetual abstinence requirement for alcoholics or those perceived to be alcoholics was not based on evidence an individual had performance or on-the-job alcohol issues, the EEOC found this reasoning to be inapplicable. Next, the EEOC likewise found no support in an argument by the employer that an alcoholic employee (or one perceived to be alcoholic) poses a direct threat to public safety when he or she has unescorted access to the power plant. Again, the EEOC determined that an individualized assessment would be needed for this justification to apply.

Of course, an informal discussion letter from the EEOC presents the commission’s opinion based solely on the facts stated in the request letter, and is not an actual determination of fact-finding or conclusion at law. However, as even a power plant must carefully tailor its alcohol policies, it is good practice for other employers to carefully consider such policies.

For more information about employment law and if an employer can prohibit off-duty drinking for an alcoholic employee, contact the Goosmann Law Firm at info@goosmannlaw.com or call 712-226-4000.