Some employers believe in giving employees a second chance. When the reason for taking action is related to drug or alcohol use, employers frequently require employees to agree to certain terms as a condition of returning to work. Often, these conditions are memorialized in a “last chance” or other agreement whereby the employee foreswears use of drugs or alcohol, agrees to increased testing, counseling or other conditions. Last month, the Third Circuit Court of Appeals upheld the use of such agreements in the face of a claim of disability discrimination under the Americans with Disabilities Act.
 
Ostrowski v. Con-way Freight, Inc., involved an alcoholic driver who was never caught intoxicated or drinking at work, but requested FMLA leave for treatment. He was required to sign the last chance agreement as a condition for returning to work. When he again requested FMLA leave after a relapse, he was terminated for drinking alcohol in violation of the agreement’s terms. He sued under the ADA and FMLA, contending that the last chance agreement impermissibly screened out disabled persons and interfered with his right to take FMLA leave.
 
In an unpublished opinion, the Third Circuit rejected these claims. Noting the heavily regulated and safety-sensitive nature of the plaintiff’s work, the court said that the return to work agreement was reasonable. It did not screen out alcoholics, but only prohibited employees from drinking alcohol. His terms and conditions of work were not changed as a result of the agreement.
 
The Third Circuit was influenced by DOT rules regarding driver alcohol use. For jobs without this clear safety component, last chance agreements should be tailored to focus on the effects of drug or alcohol use on job performance. Rather than specifically prohibiting use of alcohol, for example, the agreement could be limited to the employee agreeing to comply with the requirements of alcohol abuse treatment, which in turn could include such a prohibition.