A question was posed to me on Twitter this past week: Shouldn’t former University of Southern California (USC) football coach Steve Sarkisian have been placed on FMLA leave to get treatment for apparent alcoholism instead of getting sacked by USC? [Pun intended, of course.]
For those of you not familiar with Mr. Sarkisian, according to multiple reports, the second-year USC football coach allegedly showed up intoxicated to a team meeting last week. This behavior followed reports that he showed up drunk to a football booster event earlier this year, and even other reports that he was suspected to be under the influence during a USC game a few weeks back.
One day after forcing the coach on an “indefinite” leave of absence, USC reversed course and terminated Sarkisian’s employment after considering “what is in the best interest of the university and its student athletes.”
Does the FMLA Protect Coach Sarkisian in this Situation?
Since alcohol was involved, wasn’t USC required to place the coach on FMLA leave, instead of terminating his employment outright?
In a word, no.
The FMLA regulations make clear that leave relating to substance abuse need only be given when the employee is seeking treatment based on a referral by a health care provider — not when he shows up intoxicated at work. Here’s the regulation:
FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. 29 C.F.R. § 825.119(a).
Insights for Employers
1. Hold Your Employee to Reasonable Performance Standards. Both the FMLA and ADA allow an employer to hold an employee dealing with alcoholism to the same job performance standards as other employees. As a result, the employer has the right to discipline an employee who abuses alcohol and fails to perform the job. Based on the facts provided to USC, the University was well within its right to terminate the coach instead of offering FMLA leave.
2. Maintain a policy prohibiting substance abuse. Under the FMLA regulations, “if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.” 29 CFR 825.119.
In light of this DOL rule, it is imperative that employers maintain a written policy providing that an employee may be terminated for substance abuse.
3. Keep in mind though — if an employee is not being disciplined for violating a substance abuse policy but simply advises the employer that he intends to take time off for substance abuse treatment, this is a legitimate basis for FMLA leave. In these situations, the employer must provide FMLA leave.
4. USC placed the coach on leave but then abruptly terminated his employment the following day. Is this an FMLA problem? No. Simply put, an employee’s absence or performance issues due to his abuse of a substance is not afforded any protection under the FMLA. So long as USC can establish that it made the termination decision as a result of the coach’s conduct, and not because he was in the process of seeking treatment, it’s on solid footing.
5. Even the EEOC supports an employer’s right to take action where the employee violates a workplace policy prohibiting the use of alcohol. Yep, you read that correctly. According to Question 26 of the EEOC’s guidance, the “ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.”
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.