If you operate a business in PA, NJ, DE or the USVI, then the answer is yes. This is true — even if the ban extends to alcohol consumption off the job.
So says the Third Circuit Court of Appeals in this opinion from earlier this week, where an alcoholic employee, who had previously checked himself in to rehab, had violated the terms of a subsequent return-to-work agreement with his employer never to consume alcohol again.
The employee claimed that the agreement violated the Americans with Disabilities Act’s ADA’s prohibition of “qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability.” The court; however, disagreed:
As numerous courts have recognized, employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees. Indeed, several of our sister circuits have explicitly endorsed agreements that bar an employee from consuming alcohol–whether at the workplace or otherwise…Although Ostrowski was subject to different standards than other Con-way employees who did not sign an RWA, this difference results from the terms of his agreement rather than disability discrimination.
Ultimately, the plaintiff could not show how the ban on booze singled him out because of his alleged disability (alcoholism) versus regulating his conduct (drinking alcohol).
So, the answer to today’s question — at least in the Third Circuit — is FACT.