Many employers offer their employees the benefit of an Employee Assistance Program (“EAP”). An EAP is an intervention program that is designed to assist employees in resolving personal problems that may affect their performance. There are many types of EAPs, but they usually involve referral for some type of counseling and/or treatment. I frequently see EAPs provided for employees who have substance abuse issues.
Obviously, substance abuse is an important issue in the workplace. And, employers justifiably want employees who are committed to overcoming substance abuse problems. So, what happens if an employee suffering from substance abuse fails to comply with the terms of an EAP? In some cases, an employer might be justified in terminating such an employee. See Jacobson v. City of West Palm Beach, No. 17-12716, 2018 WL 4355863 (11th Cir. Sep. 12, 2018).
In Jacobson a firefighter self-medicated with marijuana for stress, anxiety and depression. He self-reported his marijuana use to an Assistant Fire Chief and was referred to a mandatory Employee Assistance Program. That program required Mr. Jacobson to attend six therapy sessions with the goal of becoming “Drug Free.” Unfortunately, Mr. Jacobson missed his fifth therapy session due to oversleeping. The EAP’s case manager reported to the Fire Chief that Mr. Jacobson was out of compliance with the EAP. The Fire Chief then reviewed the city’s collective bargaining agreement with firefighters, which provided: “Failure to comply with the prescribed treatment program will result in termination of employment.” Based upon that language, the Fire Chief terminated Mr. Jacobson’s employment.
Mr. Jacobson sued and claimed that the City violated the Americans with Disabilities Act. According to Mr. Jacobson, he was fired because of his depression and anxiety. A trial court ruled in favor of the City and the Eleventh Circuit Court of Appeals affirmed that decision. The Eleventh Circuit refused to find that the City was required by the collective bargaining agreement to fire Mr. Jacobson. Nevertheless, the Fire Chief’s reasonable belief that he was required to terminate was a sufficient, non-discriminatory reason for the termination decision.
Jacobson does not provide employers with carte blanche authority to terminate every employee who fails to comply with some aspect of an EAP. Indeed, the Eleventh Circuit noted that Mr. Jacobson failed to request a “reasonable accommodation” under the ADA to make-up the missed EAP session. Nevertheless, failure to comply with the terms of an EAP can, in some circumstances, justify termination.