Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee's Return From Alcohol Rehab
The recent decision out of Texas in Sechler v. Modular Space Corporation highlights a recurring issue for employers -- managing employees who return to work following rehabilitation for substance abuse. In Sechler, the plaintiff, a recovering alcoholic, was by all accounts an excellent employee for approximately 10 years until he experienced a relapse. He requested EAP services and, as a result received outpatient treatment for about a month.
Upon returning to work, he was asked to sign a "Return-to-Work” agreement, outlining the requirements with which he had to comply as a condition of his return to work. The Agreement specified that Sechler was to attend weekly Alcoholics Anonymous meetings and provide proof of attendance, as well as submit to at-will drug and alcohol screenings. He also agreed that a positive result on any screening would result in his termination.
Upon his return to work, Sechler asked that he be given permission to leave work early to attend his AA meetings, but was told he needed to schedule them on his own time. He then was scheduled for and passed a drug screening. A few weeks later, he then began exhibiting what his coworkers described as unusual behavior; that his speech was slurred and that he smelled of alcohol. One co-worker said that he thought he had seen Sechler go to the passenger side of his car and take a drink.
As a result, ModSpace scheduled Sechler for another screening and, out of a concern for his and others' safety, insisted that he not drive there himself. He refused to go unless he could drive himself to the screening. ModSpace's chief human resources officer, Sean McManus, then offered to pay for a taxi to take Sechler to the testing facility, which Sechler also refused. Because Sechler refused to allow someone to drive him to the facility, he could not produce a complying test result, and McManus made the decision to terminate his employment.
Sechler's lawsuit against ModSpace alleged violations of both the ADA and the FMLA, and ModSpace moved for summary judgment. The court had little difficulty disposing of the ADA and FMLA retaliation claims. Specifically, the court found that ModSpace reasonably accommodated any disability Sechler might have by giving him time off work to obtain treatment and by keeping his treatment confidential. In addition, regardless of whether he was disabled under the ADA or took FMLA leave, Sechler violated the terms of his return-to-work agreement (as well as the company's drug-free workplace policy) by refusing to be screened for drugs or alcohol.
With respect to the FMLA interference claim, however, the court found sufficient material issues of fact to go to trial as to whether ModSpace complied with the FMLA-notice requirements. In fact, the court noted that ModSpace's employee handbook did not contain the general notice, and Sechler testified without rebuttal from ModSpace that the FMLA was never discussed at the time he took his leave. He testified that, had he known about FMLA leave, he would have participated in an aftercare program that had been recommended to him, which would have taken about four hours of his time each week. According to Sechler, he did not believe he was entitled to take this further time off. The court concluded that Sechler's belief that ModSpace would not allow him to take further time off was reasonable, in light of the fact that his request to attend the mandatory AA meetings during work hours was denied. Finally, Sechler testified that his participation in the aftercare program “would have made a difference” in whether he relapsed. Based on all of this evidence, the Court denied ModSpace's motion for summary judgment on the FMLA interference claim (pending reconsideration if ModSpace was able to establish that it was not a covered employer under the FMLA.)
Interestingly, after it filed its summary judgment motion, ModSpace claimed that Sechler was not an eligible employee under the FMLA because ModSpace did not have the requisite 50 employees within 75 miles of his workplace at the time Sechler requested his leave. This might help explain why FMLA leave might not have been discussed with Sechler (though it of course would not explain the lack of a general notice unless of course ModSpace did not have 50 employees in total.)
From my perspective, other than the potential FMLA notice failings, the employer really seemed to have done everything right in responding to the employee's need for rehab and managing his return to work. But, the case also highlights the need for employers that hover around the thresholds for FMLA coverage and eligibility to make sure they stay on top of their employee counts to ensure they offer FMLA leave when appropriate and provide all necessary notices.