On October 12, 2015, the University of Southern California (“USC”) fired Steve Sarkisian, USC’s head football coach. Sarkisian’s firing appears to be in response to two alcohol-related incidents and, therefore, may raise legal issues related to the Americans with Disabilities Act (“ADA”).
Sarkisian’s History with Alcohol-Related Incidents
On August 22, Sarkisian was captured on video at a USC-sponsored event slurring his speech and using profanity to describe USC opponents while he spoke to an audience that included USC boosters, players, cheerleaders, and fans. Sarkisian apologized for the incident, which he described as resulting from mixing alcohol and medication. Sarkisian is reported to have denied having a drinking problem, and at the same time to have stated that he would pursue treatment. He continued to coach USC and, if USC subjected him to any discipline or further terms and conditions of employment in response to the incident, it was not made public. Then, after a loss on Thursday, October 8, to the University of Washington (“UW”), the program he used to coach prior to USC, it was reported that Sarkisian failed to attend a scheduled practice on Sunday, October 11. When USC Athletic Director Pat Haden called Sarkisian to inquire about Sarkisian’s whereabouts, Haden noted that “it was very clear” that Sarkisian “was not healthy.” In response to these incidents, and amid alleged reports that Sarkisian’s staff suspected him to be under the influence during a September 26 game against Arizona State, Sarkisian was asked and agreed to take a leave of absence for an “undisclosed condition” on October 11.
On October 12, the Los Angeles Times published a story relating to Sarkisian’s alcohol use while coaching UW from 2009 to 2013. That same day, Haden fired Sarkisian and explained that USC remained “concerned for Steve and hope[s] that [his firing] will give him the opportunity to focus on his personal well-being.” If an employer has been aware of an employee’s prolonged problem with alcohol use and terminates the employee for alcohol related reasons, it may raise legal issues related to the ADA.
Alcohol Dependency and the Americans with Disabilities Act
Alcohol dependency is considered a disability under the federal ADA and analogous state disability laws. Accordingly, employers cannot discriminate on the basis of an employee’s alcohol-related disability and must engage in an interactive process and provide a reasonable accommodation for that disability if necessary. One common form of accommodation with respect to alcohol dependency is an unpaid leave of absence while the employee seeks treatment or other counseling, which is what USC appeared to provide Sarkisian on October 11.
Employers, though, are permitted to have policies that expressly prohibit both alcohol in the workplace and employees from being under the influence of alcohol in the workplace. Moreover, an employer can discipline, discharge, or deny employment to an employee whose use of alcohol adversely affects their job performance or conduct. An employee who suffers from alcohol dependency, thus, must be able to perform his or her essential job functions, including but not limited to adhering to an employer’s attendance policy and work performance standards. Therefore, to avoid liability under the ADA, USC may be able to point to Sarkisian’s failure to attend a scheduled practice or his alleged intoxication during a prior game as evidence that Sarkisian violated USC policies with respect to alcohol and failed to perform his essential job functions.
Next Steps for Sarkisian and USC, and for Employers Generally
Still, because USC appeared to attempt to provide Sarkisian with at least one accommodation for his alleged alcohol dependency and terminated him before it was possible to determine whether or not Sarkisian could continue to perform his essential job functions with that accommodation, Sarkisian could assert that his termination while on a leave of absence for a disability was unlawful in violation of the ADA. Whether this would result in litigation is unclear for many reasons.
Most employees, though, do not have concerns such as Sarkisian’s, and, therefore, may be more willing to bring a lawsuit against their employer if treated similarly. Employers, thus, should be careful in how they treat and discipline employees for issues related to alcohol dependency.
Specifically, with respect to the ADA, employers should know that:
Once an employer is aware of an employee’s alcohol dependency, the employer has an obligation to engage in the interactive process with the employee to determine if an accommodation is needed;
An employer still must evaluate whether or not a reasonable accommodation is appropriate and can be provided to an employee with an alcohol dependency such that the employee is able to perform his or her essential job functions with the accommodation;
An employee’s inappropriate behavior or failure to perform essential job functions is not excused by the employee’s alcohol dependency, especially if an employer has specific workplace policies addressing alcohol;
An employer may impose the same discipline upon an employee with alcohol dependency that it would for any other employee who fails to meet its performance standard or who violates a uniformly-applied code even if the employee mentions their alcohol dependency or requests an accommodation for the first time in response to discipline for unacceptable performance or conduct; and,
An employer may, but is not required to offer a “last chance agreement” to an employee who could otherwise be terminated for poor performance or misconduct that results from alcohol dependency, a violation which could warrant termination if the employee failed to meet conditions for continued employment.
Though it may never be known exactly why Sarkisian was terminated by USC, his story gives both employers and employees alike the opportunity to reflect on some thorny ADA issues relating to alcohol dependency.