Many employers stick to a no tolerance policy for employees who report to work intoxicated, or who fail drug or alcohol tests. Those willing to give employees a second chance are often faced with a conundrum. By allowing the employee to continue employment, they frequently are required to deal with the substance abuse issue as a disability under the Americans with Disabilities Act, and cannot discriminate against the employee on this basis. Last month, the Second Circuit Court of Appeals made clear that such ADA discrimination ban does not prohibit employers from imposing special conditions on substance abusing employees as a condition of continuing employment.

In Clifford v. County of Rockland, the plaintiff reported to work drunk. She was given a disciplinary suspension, and her continuing employment was conditioned upon a medical evaluation, random alcohol testing going forward and an agreement that she would refrain from any drinking for at least one year. She alleged that these measures were unnecessary discrimination, and that the employer should have been limited to warning her that additional drinking on the job would result in termination.

The Second Circuit had little difficulty in rejecting these claims and affirming summary judgment for the employer. Noting that the county was fully justified in terminating the plaintiff for the offense, the ADA does not prohibit it from imposing reasonable measures as a condition of employment. All of these conditions were included in the physician's evaluation. The employer never refused any request for accommodation by the plaintiff to seek treatment for alcoholism.

In some circumstances, questions arise over the length of time that such special conditions may continue after the initial incident. Under the ADA, such conditions cannot be permanent. If the employee does not demonstrate signs of relapse, employers should eventually end such special measures, usually after six months to a year.