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There is hardly a workplace in America that does not prohibit its employees from reporting to work under the influence of alcohol or controlled substances. Just how far an employer may go in ensuring that its employees are not working under the influence of alcohol was addressed by a U.S. District Court in the recent case of Nauseda v. Tootsie Roll Industries, Inc., No. 02-C-2150 (N.D. Ill. Apr. 15, 2003). Alex Nauseda was a supervisor in Tootsie Roll’s Maintenance Department, working the 3:00 p.m. – 11:30 p.m shift. He supervised a crew of 14, performing various jobs with the heavy machinery making the Tootsie Rolls. During the Chicago plant’s annual shut-down for maintenance, Nauseda checked himself into a hospital for in-patient alcohol rehabilitation for 3 days. The plant manager, Stephen Green, had another supervisor visit Nauseda in the hospital to assure him of Tootsie Roll’s full support. His job was safe and he was told to take as long as necessary before returning to work. ZERO TOLERANCE FOR ALCOHOL AT WORK When Nauseda returned to work the next week, Green told him that the company was committed to his success, but also reiterated that company policy prohibited coming to work under the influence of alcohol. Nauseda was told that “there would be no further warnings and that [he] must remain alcohol-free from that point forward.” Finallly, in order to ensure that Nauseda complied with this directive, he would be required to submit to a breathalyzer test every day before beginning work. When Nauseda reported to work on February 28, his breathalyzer test reported that he had a 0.028 blood alcohol level. Nauseda told the company nurse that he had had a “couple of glasses of wine” at dinner the night before. The nurse reported this to the human resources manager who, in turn, called Green, the plant manager. Nauseda told Green that the test results were caused by the “two glasses of wine” he had had at dinner. Green sent Nauseda home and contacted the corporate director of human resources. TERMINATION FOR REPORTING UNDER THE INFLUENCE The corporate manager learned that Nauseda’ blood alcohol level would have required much more than two glasses of wine 12 hours before reporting to work. In fact, Nauseda later admitted that he had drunk more than half a gallon of wine in a period ending just a few hours before work. Nauseda was fired for four separate reasons — including reporting to work under the influence of alcohol and for lying to Green about how much he had to drink. Nauseda sued under the Americans with Disabilities Act, claiming that his alcoholism was a disability and (or) that he was perceived to be disabled. His principal argument was that the company’s daily breathalyzer tests were a set-up to allow the company to fire him because of his alcoholism. The court began its analysis by considering whether Nauseda’s alcoholism was a disability under the ADA. Nauseda argued that his alcoholism affected every aspect of his life and that while he was in the hospital, his major life activities were disrupted. ALCOHOLISM NOT A PER SE DISABILITY The hospital disruption lasted only a few days and the court found it to be intermittent, at most — not a disability. The court emphasized that Nauseda claimed that his major life activities were “affected” by his alcoholism. Whether Nauseda’s counsel failed to argue that he was “substantially limited” (as needed to establish a disability) or whether the court simply found there to be no “substantial limitation,” is unclear. What is clear is that “if the standard set forth by the ADA … was merely that the impairment affect a major life activity from time to time, the number of impairments covered by the ADA would be infinite.” Nauseda’s “perception of disability” claim was summarily dismissed. “This part of the ADA is meant to cover those situations in which an employer mistakenly believes that an employee has” an ADA impairment. Since Nauseda was an alcoholic and had argued this to the court, his “perception” argument “does not make sense.” Even if Nauseda had been covered by the ADA, he could not have shown that his termination was the result of his disability. He had been told there would be no tolerance for coming to work under the influence and should not have been surprised when this was enforced. BREATHALYZER A ‘GENEROUS’ ACCOMMODATION The court’s reaction to the daily breathalyzer tests was somewhat surprising. Rather than question this approach from the company, the court found the tests to be a generous accommodation in lieu of firing. This was particularly so because Nauseda repaired heavy machinery and was, from that perspective, responsible for the safety of the entire plant. The court also found that the company’s need to risk manage Nauseda and his crew justified the daily testing. That is, if someone was injured because Nauseda was working under the influence of alcohol, and the company had done nothing to ensure that he was sober, it could be liable in a subsequent lawsuit. “To request that the defendant allow itself to be vulnerable in this way is an extremely unreasonable accommodation for Mr. Nauseda to request.” While the discussion of potential liability was not part of the principal holding in the case, it is clear that Nauseda did not ask that the company assume greater risk of liability as part of his accommodation request. The court has grafted this onto his case, in such a way that increased potential liability would potentially be a part of every accommodation request. This “addition” would strongly favor employers, as accommodations would almost inevitably include greater risk of liability at some level. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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