Wednesday, August 31, 2011
In more good news for employers worried about liability, the Obama administration has set up yet another Catch-22 for business:
The federal government has sued a major trucking company for its firing of driver with an admitted alcohol abuse problem.
Alcoholism is classified as a disability under the Americans with Disabilities Act, the suit maintains, and therefore employees cannot be prohibited even from driving 18 wheelers due to their histories of abuse.
Presumably this rationale equally applies to oil tanker captains, bus drivers, airline pilots, and neurosurgeons. Yet again, business has to choose between managing tort liability and navigating federal regulation that makes it much harder to... manage tort liability. Not to mention actually, you know, doing business.
Same thing with the Captain of the Exxon Valdise.
"Mindful that the Valdez lawsuits were based on an allegation the company negligently allowed a captain with an alleged history of alcoholism to guide the ship, Exxon implemented a policy forbidding persons who had undergone substance abuse treatment from holding certain safety-sensitive positions, such as captain of an oil ship.
The U.S. Department of Justice had helped Exxon develop that policy and urged the company to adopt it. But immediately after Exxon did so, the U.S. Equal Employment Opportunity Commission (EEOC) sued the company, claiming the policy violated the Americans with Disabilities Act (ADA)."
One wonders if the ODFL is the trucking equivalent of Gibson Guitars?
The other glaring inconsistency here is that Government is continually striving to make the peasants' lives as risk free as possible, and yet in this instance, they are throwing safety to the wind in favor of extending the protected classes.
Furthermore, why isn't all business in the USA held to this standard?
Drunk receptionists, financial traders machine/heavy equipment operators.....what could possibly go wrong?
Years ago in a Dilbert strip, Wally was fired for not doing any work, but Dogbert, his lawyer told the pointy haired boss that laziness was a disablity covered under the ADA and he was going to sue the company for wrongful termination. This decision hits fairly close to that mark.
You can blame Bush '43 for the change.
In 2008, he signed into law the ADA Amendments Act, which, among other things, extends ADA protections to individuals with episodic impairments or conditions in remission if it would substantially limit a major life activity when active. Alcholism would fit that definition.
In addition, the ADAAA mandated that impairments need only limit one major life activity in order to constitute a disability. Scary stuff if your an employer.
Understanding that there is still an impact even if this remains the case, isn't it a requirement that the person is capable of performing the job functions with reasonable accommodation? That would seem to rule out persons who were actively drinking, taking drugs, etc.
Ignoramus writes: He could be "clean and sober" in AA for several years.
Exactly. It means that under ADA amendments signed by Bush, an employer can't fire you because you are a recovering alcoholic. I expect many a CF, um CEO might find comfort in this development :~>
Well before tht ADA, alcohol problems had to be treated as medical problems, to the great consternation of HR folks and managers everywhere. Reclassifying them as disablities didn't change that.
It is still difficult to discharge a chronic alcoholic employee. There are a lot of hoops to jump through: Consultations and warnings; mandatory rehab (paid for by the employer) and surprise testing. All the while, the company is in vulnerable position, as was Exxon with its alcoholic captain.
We are in a regulatory morass, where a company has to violate common sense to conform with the law. And juries tend to penalize failure to follow common sense despite the law.
All it means is companies will be sued for following the law. Guranteed. It keeps lawyers employed, so somehow in the convoluted logic of today it is a good thing.
I thought that the requireement of the ADA was that an employer find some other job within its organization that a "disabled" person can perform, rather than just firing the person because he can't perform the job for which he was originally hired, so maybe here the suit just claims that the trucking company should have found the guy a loading or desk job, not that he be allowed to continue driving trucks while drunk.
According to the EEOC report on this (click on the link in TH's post, then on the EEOC link in that post), the freight company did not fire the driver. Rather it assigned him to non-driving work and told him it would never let him work as a driver again. The EEOC objects to both the freight company requiring substance abuse counseling as a requirement for being assigned to non-driving work *and* to not letting the driver return to driving work.
In other words, the EEOC is behaving even more stupidly than it first appeared they were from the original post. Which is quite an accomplishment.
Because the employee in this situation is a truck driver, there is a simple remedy to his potential alcohol issues. Management can install an ignition interlock on the vehicle this person drives in his job. The driver would need to blow into the device and show a 0.0 blood alcohol in order to start the truck. If he is unable to start and then operate the truck, surely he could be removed from his job without any ADA ramifications. If he is unable to operate the vehicle he has been hired to drive, whether it is the brakes, the turn signal or the ignition, he should be fired for cause. This remedy would allow a fully sober recovering alcoholic to succeed at his job.
Quote,"there is a simple remedy to his potential alcohol issues. Management can install an ignition interlock on the vehicle this person drives in his job. The driver would need to blow into the device..."
It's not that simple drivers drive the same vehicles every day. They would have to install them on all of their vehicles.
"Traded a free hand in domestic policy to Congress for support in foreign relations and the wars, because that was more important to him."
Agreed that's what happened. But we split on whether or not this was necessary or good for the nation.
A pilot flying for Northwest was arrested for flying his airliner drunk, went to prison for a few years and got out, only to sue NW to get his job back under the ADA. He won. He's flying airliners full of people today, which is why I refuse to fly NW. Much worse than just a truck driver. How many people can a truck driver kill, a couple of dozen or so at most? But think about a drunk flying an airliner... AGAIN. They should restrict passengers on his flights to only lawyers, politicians and judges. Oh, and their families, of course.