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from Spencer’s Benefits Reports: Failure to adhere to the policy of the Home Depot Employee Assistance Program (EAP) and violating work rules by working under the influence of alcohol were reasons for an employee’s dismissal, said the Seventh Circuit Court of Appeals in Diane Ames v. Home Depot (No. 09-4151, Jan. 6, 2011). A violation of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) did not occur.
When Diane Ames began work at Home Depot in November 2001, she received a copy of Home Depot’s Code of Conduct, which listed having detectable levels of alcohol as determined by a blood alcohol test as a “major work rule violation” that was terminable upon a first offense. For the next five years, she worked without incident.
On Sept. 23, 2006, she enrolled in Home Depot’s EAP because she admitted to having an alcohol problem. The EAP agreement which she signed said, in part,
Ms. Ames returned to work on October 18 after a one-month paid leave of absence. A month later, on November 18, she was arrested for driving under the influence. After seeing her DUI arrest reported in the local paper, her EAP case manager tried to notify her that her DUI arrest put her in noncompliance with the terms of the EAP. During the next month, there were various meetings with the store manager concerning rearranging her work schedule so she could attend Alcoholics Anonymous meetings as well as an EAP-mandated evaluation.
On December 20, she had a meeting with the store manager concerning her various personal problems as well as whether or not Home Depot would pay for the EAP-mandated evaluation. In court testimony, Ms. Ames conceded that she did not specifically ask for leave from her job during this meeting.
On December 23, she reported for her scheduled work shift, but an assistant store manager told the store manager that Ms. Ames was acting differently and smelled of alcohol. A blood alcohol test was administered. She did not return to work after that. On Jan. 11, 2007, she received a letter from Home Depot stating that “based on her violation of Home Depot’s substance abuse policy, her employment was terminated as of Dec. 23, 2006, the day she came to work under the influence of alcohol.”
FMLA And ADA Claims
Neither the district court nor the appellate court agreed with her assertion that her rights under the FMLA and the ADA had been violated. The courts said she failed one of the requirements under FMLA–that she was entitled to leave under FMLA. “An employee is entitled to leave under the FMLA if (1) she is afflicted with a ‘serious health condition,’ and (2) that condition renders her unable to perform the functions of her job.”
The Seventh Circuit pointed out that “when viewing the facts in the light most favorable to Ames, she cannot establish that she is afflicted with a serious health condition. Substance abuse can qualify as a serious health condition, if treatment for substance abuse involves ‘inpatient care’ or ‘continuing treatment by a health care provider.’ At no time before December 23, the day she was terminated, did Ames go into inpatient care for her condition….Moreover, there is no evidence that Ames’s condition rendered her unable to perform the functions of her job.”
The court also dismissed her FMLA retaliation claim stating “first, the requirement to take a blood alcohol test was in accordance with the terms of Home Depot’s Employee Assistance Agreement to which Ames agreed; and second, the termination occurred only after Home Depot learned that the test result was positive, which was a terminable violation under the Assistance Agreement and Home Depot’s Code of Conduct.”
Concerning her ADA claim, the court noted that “alcoholism may qualify as a disability if it ‘substantially’ limits one or more major life activities.” However, the court pointed out that “Ames cannot show that her alcoholism is an ADA disability because there is no evidence in the record that it substantially limited her major life activities.”
The Seventh Circuit concluded that “there is no evidence that Home Depot failed to accommodate Ames’s requests to schedule her work around AA meetings; in fact, the evidence shows that Home Depot gave Ames time off with pay and assistance through its Employee Assistance Program.” Ames was fired because she came to work under the influence of alcohol, a violation of workplace rules.
For more information on this and related topics, consult the CCH Pension Plan Guide, CCH Employee Benefits Management, and Spencer's Benefits Reports.
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