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Second Circuit upholds dismissal of an alcoholic employee for poor attendance

Second Circuit upholds dismissal of an alcoholic employee for poor attendance
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Is an alcoholic employee discharged because of poor attendance protected under the ADA? Stated another way, was he discharged because of his attendance or alcoholism?

That is the issue in Vandenbroek v. PSEG Power, ___F.3d___(2d Cir. Dec. 11, 2009), which the court punts.

The 2d certainly implies that the alcoholic would not be protected under the ADA-but the court does not go so far as to hold that. Why? In Teahan v. Metro North, 951 F. 2d 511 (2d Cir. 1991), the court held that under the Rehab Act an employer fires an employee because of his disability when the decision is based upon conduct caused by the disability.

How does the court get around this? By holding that the employee is not qualified for the job because regular attendance is necessary.

The court effectively overrules Teahan because such employees would be unqualified under the Rehab Act as well.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on February 05, 2010 (boomark / email).