Keywords: ADA, current diagnosis of alcoholism, essential function, qualified individual with a disability
Sakari Jarvela (Jarvela) worked as a commercial vehicle driver. He successfully completed a thirty-day outpatient program for alcohol abuse on a doctor’s recommendation. His counselors at the rehabilitation center as well his personal physician gave him permission to return to work without restriction. However, his employer lists compliance with the Department of Transportation’s regulations as an essential function of the position. The regulations bar any commercial vehicle driver with a current diagnosis of alcoholism. A week after completing rehab, Jarvela was terminated for not being able to perform the essential functions of the position.
The Eleventh Circuit had to decide what a “current diagnosis” of alcoholism is to determine whether Jarvela could perform the essential functions of the job. The ADA has a “safe harbor” provision whereby an individual who has completed a rehabilitation program and who is not currently engaged in alcohol or drug use may be covered under the Act. The Eleventh Circuit did not look to the other circuits for guidance; however, several circuits have outlined tests to determine what is a “current diagnosis” of alcoholism. The Eleventh Circuit chose not to set forth a bright-line test, but it did hold that a week of sobriety after the competition of a thirty-day program still qualified as a “current diagnosis.”
Sakari Jarvela, the Plaintiff, worked as a commercial motor vehicle driver for Crete Carrier Corporation until his termination a week after a substance abuse treatment center discharged him with a diagnosis of alcohol dependence. In March 2010, Jarvela told his physician that he had difficulty with alcohol use. His physician referred him to a thirty-day outpatient treatment facility. Jarvela complied with his physician’s suggestion and requested leave under the Family and Medical Leave Act (“FMLA”) to receive treatment. Crete granted Jarvela his requested leave.
When Jarvella arrived at the treatment center, he completed a Certification of Health Care Provider for Employee’s Serious Health Condition with his primary counselor and attending physician. They were required to estimate the likely duration of Jarvela’s condition and stated “chronic.”
After he completed treatment, Jarvela visited his personal physician and received a Crete-prepared Return to Work Certification. His physician noted on the certification that the treatment center discharged Jarvela with no restrictions.
Afterwards, Jarvela notified his supervisor that he was able to return to work. He was told to complete a fitness-for-duty examination with Crete’s medical examination contractor and to report to work the following Monday. The medical examiner gave Jarvela a Medical Examination Report for Commercial Driver Fitness Determination that cited to his rehabilitation counselor’s determination that he could return to his regular job responsibilities without restriction. The examiner diagnosed Jarvela with alcohol dependence and suggested that he attend AA/NA meetings three times a week, continue to call his sponsor, and attend a continuing care meeting once a week for two years. The examiner further stated that Jarvela “meets standards” and gave him a “six-month card” for when he should return for a follow-up examination.
Jarvela reported to work the next day only to be terminated. Crete’s Vice President of Safety and Compliance determined that Jarvela had a “current diagnosis of alcoholism” that disqualified him as a commercial truck driver under the Department of Transportation’s (“DOT”) regulations. According to Jarvela, the Vice President said that Crete “could not ‘accommodate’ a long-haul driver with the continuing-care recommendations” he required.
Jarvela sued Crete, alleging violations of the ADA and FMLA. The district court granted Crete’s summary judgment motions on both claims. With respect to the ADA claim, the court reasoned that because of his current diagnosis of alcoholism, Jarvela was not a qualified individual with a disability under the ADA. Regarding his FMLA retaliation claim, the court found that Crete would have terminated Jarvela regardless of his FMLA leave because of his current diagnosis. The Eleventh Circuit issued a prior opinion published at 754 F.3d 1283, which it vacated and substituted this opinion for the prior panel opinion.
Drug and alcohol addiction is a disability under the ADA if the individual has sought treatment and is not currently using drugs or alcohol. 42 U.S.C.A. § 12114(a). This is commonly known as the “currently engaging” exception or the “safe harbor provision.” To be a qualified individual with a disability under the ADA, Jarvela had to prove that when terminated he was able to perform the essential functions of his job. Crete’s written job description provides that a commercial motor vehicle driver must comply with DOT regulations, and the Eleventh Circuit considered this description as evidence of the essential functions of the position.Congress and the Equal Employment Opportunity Commission have determined that employers subject to DOT regulations may require that their employees comply with DOT standards. 29 C.F.R. § 1630. One such regulation provides that individuals must meet the physical
qualification standards, which include “no current clinical diagnosis of alcoholism.” The Eleventh Circuit therefore had to determine whether Jarvela had a current diagnosis of alcoholism that made him non-compliant with DOT regulations, thereby making him unable to perform the essential functions of his job.
The issue in determining whether a diagnosis of “alcoholism” is current lies in the fact the diagnosis is one that an individual carries for their entire life. The Eleventh Circuit did not look to other circuits for guidance on this point; however, the Second, Third, Fourth, Ninth, and Tenth Circuits have all defined the scope of the “currently engaging” exception under the ADA.
The Second Circuit considered the scope of “current” in Teahan v. Metro-North Commuter R.R. Co. when it considered a termination suit brought under the Rehabilitation Act by an employee diagnosed with alcoholism. The Rehabilitation Act, similar to the ADA, does not consider someone who is a “current substance abuser” an individual with a disability. The court focused on whether the employer had a reasonable belief that the employee’s substance abuse problem is severe and recent enough to impair the ability to perform the essential functions of the job.
The Fourth Circuit set a more definitive time frame when it considered this issue in Shafer v. Preston Memorial Hospital Corporation. There a nurse anesthetist was caught stealing pharmaceuticals. The hospital granted the plaintiff medical leave to get rehabilitation for her claimed addiction and after she completed her intake, terminated her. She obtained work elsewhere on a restricted license and within two weeks used drugs again. Her license was then revoked. The court established the rule that an employee who uses drugs in a periodic fashion in the weeks and months before termination, currently engages in the use of drugs. However, the Fourth Circuit established an upper-limit to this in United States v. Southern Management Corporation where it found that a year of abstinence allowed an individual to gain “safe harbor” of the ADA because the drug use was no longer “current.”
In Mauerhan v. Wagner Corp., the Tenth Circuit considered both of these approaches when it considered the case of an individual who was in an outpatient drug rehabilitation program and tested positive for drugs. After being terminated, the plaintiff entered a thirty-day inpatient program. Upon completion he asked his employer to return to work. He was told that he could, but at a lower level of compensation. He refused to accept less pay and filed suit alleging violations of the ADA and Rehabilitation Act. The court held that there is no formula for determining if someone falls under the safe harbor of the ADA by not “currently” using drugs. Eligibility must be determined on a case-by-case and courts should consider the severity of the employee’s addiction, the relapse rate for the drug being used, the employer’s job and performance requirements, the degree of competence needed to perform the task, and the employee’s past performance. This inquiry will enable a court to decide whether an employer could reasonably determine that an employee’s substance abuse prohibited them from performing the essential functions of the job.
Conversely the Ninth Circuit uses a more definite test. In Brown v. Lucky Stores, Inc., the court noted that simply participating in a rehabilitation program is not enough to fall within the safe harbor exception. In addition, an individual must refrain from the illegal use of drugs for a “significant period of time.” There the plaintiff was sober for six days between her arrest and termination, and the court held that was not a significant amount of time.
Here Jarvela completed a thirty-day alcohol treatment program. He was then terminated seven days later. The Eleventh Circuit like the other circuits decided not to establish a bright line rule as to when a diagnosis of alcoholism was no longer current. However the court did determine that a week after discharge was not sufficient. The Court found that Crete had a right to rely on the Crete-prepared Return to Work Certification that stated Jarvela had a “current clinical diagnosis of alcoholism.” Given that the EEOC has already determined that an employer can rely upon DOT regulations to define the essential functions of a position, the Eleventh Circuit found that Jarvela could not perform the essential functions as he had a current clinical diagnosis of alcoholism.
The FMLA prohibits employers from discriminating against employees that exercise their rights under the Act. To state a claim a plaintiff must show that: (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) the action was causally related to the protected activity.”
The Eleventh Circuit found that Crete’s decision to terminate Jarvela was not causally related to his use of FMLA leave. The Vice President of Safety and Compliance terminated Jarvela and he did not know that Jarvela took FMLA leave.
Further, the Eleventh Circuit determined that Crete did not interfere with any of Jarvela’s rights under the FMLA. Jarvela argued that he was entitled to return to work after taking his leave and that Crete denied him that benefit. However, under the FMLA, an employer can deny reinstatement if it can prove that it would have discharged the employee even if FLMA was not used. The court found that Crete would have terminated Jarvela regardless of his use of FMLA because of his current clinical diagnosis of alcoholism.
Successful completion of a thirty-day treatment program and an additional week of sobriety is a current diagnosis of alcoholism. If an employee is discharged because that diagnosis prohibits them from being able to perform the essential functions of the job, that is not discrimination under the ADA or interference or retaliation under the FMLA.
The issue of how to determine what a current diagnosis of alcoholism is has been reviewed by several circuits. In the Eleventh Circuit, however, we now know that thirty-seven days is considered current and does allow one to fall under the safe harbor doctrine of the ADA. The Eleventh Circuit has yet to set an upper limit like the Fourth Circuit. But any individual who was diagnosed with alcoholism and who can not have such a diagnosis to perform the essential functions of a job will not be able to successfully sue under the ADA if the diagnosis is a month old.