Last month, in Kozisek v. Seward County, the Eighth Circuit Court of Appeals held that a county employer’s requirement that an employee seek professional treatment for his alcohol use was not a violation of the Americans with Disabilities Act. The employee was not disabled under the ADA, nor did the employer regard the employee as disabled under the ADA. The court affirmed the district court’s ruling that the employee was properly terminated for his failure to comply with the county’s requirements.
Kozisek was a Vietnam War veteran suffering from Post Traumatic Stress Disorder (PTSD) who took medication to control his symptoms. He disclosed this when hired in 1994 but did not publicly discuss his condition. In July 2005, he failed to take his medication and was involved in an alcohol-induced incident in which he wielded firearms, killed or wounded some family farm animals and threatened his wife. He was later arrested and charged with several felonies.
A mental health therapist from the Veterans’ Administration examined Kozisek and recommended an inpatient treatment program. Kozisek preferred to complete outpatient treatment. The employer adopted the recommendation of the VA counselor and gave Kozisek over a month to provide proof of enrollment in an inpatient program. Kozisek attended Alcoholics Anonymous meetings but refused to receive in-patient treatment and was subsequently terminated.
Under the ADA, a person is considered disabled if her or she: (1) has a physical or mental impairment that substantially limits one or more life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. Kozisek claimed that he was disabled, and that his termination violated the ADA. He argued both that his PTSD substantially limited a major life activity, and that by requiring him to seek alcohol treatment as a condition of his employment, the County regarded him as disabled. The court affirmed summary judgment for the county on both of these claims, first citing the lack of evidence that the current decision-makers had knowledge of Kozisek’s PTSD.
Next, the Eighth Circuit relied on a prior holding that employment restrictions based upon the recommendations of physicians do not establish a perception of disability. The court distinguished these facts from another case where an employer did regard an employee as disabled by requiring the employee to enter substance abuse counseling even though the employee had not had any encounters with law enforcement regarding her alcohol use. The court drew a distinction between requirements based upon professional advice, and the employer requiring medical treatment based upon general beliefs. Note that numerous federal courts have held that mandatory referrals to an Employee Assistance Program are not considered medical treatments.