Blanket policies prohibiting alcoholic employees from consuming alcohol permanently – whether on-duty or off-duty – violate the Americans with Disabilities Act (ADA), according to the Equal Employment Opportunity Commission (EEOC) in an informal discussion letter dated August 28, 2014.

The representative of a union whose members are employed by a public utility that operates nuclear power plants regulated by the U.S. Nuclear Regulatory Commission asked the EEOC whether it is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment.  Pursuant to NRC regulations, the employer is required to implement procedures for screening employees it intends to grant unescorted access to secured or critical areas of nuclear power plants to assure that they are “trustworthy and reliable” and do not constitute “an unreasonable risk to public health and safety or the common defense and security, including the potential to create radiological sabotage.”

The union and the employer entered into a “two strikes and you are out” agreement that provided that the employer would conduct certain types of drug and alcohol tests of all employees and could discharge any employee after a second confirmed positive alcohol test at work.  The employer also imposed an additional requirement on employees who were referred (or referred themselves) to the Employee Assistance Program for alcohol counseling:  to permanently abstain from drinking on and off the job as a condition of being granted or maintaining security access.

The EEOC rejected such a blanket rule – applied to all alcoholics or individuals perceived to be alcoholics – primarily because no individualized assessment was conducted.  Specifically, the ADA does not permit employers to apply qualification standards that screen out, or tend to screen out, individuals on the basis of disability unless they are job-related for the position in question and consistent with business necessity.  Because some of the employees subject to the rule did not have performance or work-related conduct issues, the employer could not show that the blanket rule was necessary to ensure the employees were “trustworthy and reliable.”  Even if it was appropriate to require some employees to abstain from alcohol, or to subject certain employees to more frequent alcohol testing, the employer would have to make such a determination by conducting an individualized assessment based on a particular employee’s history rather than requiring all employees who are alcoholics or perceived to be alcoholics never to drink as a condition of keeping their jobs.

The ADA also prohibits employers from using safety-based qualification standards to screen out individuals with disabilities without showing that such individuals pose a direct threat (i.e., a significant risk of substantial harm to the individual or others) that cannot be reduced or eliminated with a reasonable accommodation.  The EEOC stated that the employer may not merely speculate that employees who are alcoholics or are perceived to be alcoholics may one day come to work under the influence of alcohol.  If the employer has imposed the permanent abstinence rule based on safety concerns, it must demonstrate that the standard is necessary in order to avoid a direct threat, based on an individual’s present ability to safely perform the essential functions of the job.  Because it did not appear that the employer’s blanket rule allowed for an individualized assessment of the risks that a particular employee posed, it did not appear to meet the direct threat standard.

There may be other compelling reasons why employers should not prohibit off-duty alcohol consumption.  Some states, including Colorado and New York, have “lawful activities” laws, which provide that employers may not take action against employees for engaging in lawful activities while they are off-duty.  Employers should review their alcohol consumption policies to ensure compliance with all applicable laws.