Implementation Guidelines - Federal Transit Administration - U.S. ...

Unlike the situation with respect to current use of illegal drugs, the use of alcohol contrary to
law, federal regulation, or employer policy does not deprive an individual of status as a
“qualified individual with a disability” that he or she would otherwise have under Title I. An
individual is protected by Title I, however, only if the individual has a disability in the first place.
(This is also true with respect to a former drug user or any other individual who seeks the
protection of the ADA.) To have a disability, an individual must have a “physical or mental
impairment that substantially limits one or more major life activities of such individual, a record
of such impairment, or being regarded as having such impairment” (§1(2)). While, as the EEOC
notes in its Title I regulation, “individuals disabled by alcoholism are accorded the same
protections accorded other individuals with disabilities” (56 FR 35752, July 26, 1991), not all
individuals who use alcohol in violation of the law, federal regulation, or employer policy are
“disabled by alcoholism.”
The courts interpreting section 504 of the Rehabilitation Act of 1973 (with which ADA
employment provisions are intended to be consistent) have concluded that alcoholism can be a
disability which may call for reasonable accommodation. See e.g., Walker v. Weinberger, 600
F.Supp. 757 (D.D.C., 1985); Tinch v. Walters, 765 F.2d 599 (6 th Cir., 1985); McKelvey v.
Walters, 596 F.Supp. 1317 (D.D.C., 1984); Anderson v. University of Wisconsin, 665 F.Supp.
1372 (W.D. Wis., 1987), aff’d 841 f.2d 737 (7 th Cir., 1988); Richardson v. Postal Service, 613
F.Supp. 1213 (D.D.C., 1985); and, Sullivan v. City of Pittsburg, 811 F.2d 171 (3 rd Cir., 1987).
The logic of the ADA and EEOC’s regulatory provisions implementing the statute, suggest
that in determining whether an employee or applicant who has a positive result on a DOTmandated
alcohol test or otherwise violates a DOT alcohol rule is disabled by alcoholism, the
employer would answer to questions. First, does the individual have a physical or mental
impairment; e.g., is the individual an alcoholic? (People who test positive for alcohol are not
necessarily an alcoholic.) This question would probably have to be answered with the assistance
of a physician or substance abuse professional. Second, if the individual is an alcoholic, does
this impairment substantially limit a major life activity or is it (even erroneously) regarded as
substantially limiting a major life activity? This question would be answered on a case-by-case
basis, following EEOC’s guidelines (see 56 FR 35740-44, July 26, 1991). Under DOT’s alcohol
prevention rules, it is required that these determinations be made by or in cooperation with the
substance abuse professional following a positive test or rule violation.
The determination of whether an individual is a qualified individual with a disability is made
in two steps: (1) whether the individual has the appropriate education, experience, skills, and
licenses, and meets the other prerequisites of the position; and (2) whether the individual can
perform the essential functions of the job desired or held with or without reasonable
accommodation. Essential functions are the functions that the individual holding the position
must be able to perform unaided or with reasonable accommodation. Several factors are
considered in determining whether a job function is essential, including whether the employer
actually requires employees in the position to perform the function, whether the position exists to
perform the function, whether there are other employees who could perform the function, and
whether there is a high degree of expertise or skill required to perform the function.
Appendix C. ADA Discussion C-3 August 2002