The Third Circuit Court of Appeals has upheld the dismissal of a claim under the Americans With Disabilities Act (ADA) brought by an employee who was terminated for violating the terms of a return to work agreement that precluded any consumption of alcohol. Ostrowski v. Con-way Freight, Inc., 2013 WL 5814131 (3d Cir. Oct. 30, 2013). The employee (Ostrowski) was employed by Con-way as a Driver Sales Representative. Con-way is subject to motor carrier safety regulations issued by the U.S. Department of Transportation and maintains drug and alcohol screening programs required by those regulations.
In May 2009, Ostrowski requested a leave of absence "to enter a rehabilitation program for the treatment of alcoholism." The leave request was granted under the Family and Medical Leave Act (FMLA). Upon returning to work, Con-way required that Ostrowski sign a Return to Work Agreement wherein he was to remain free of drugs and alcohol while on or off company time for the remainder of his employment. Within a month of signing the agreement, Ostrowski suffered a relapse and entered a rehabilitation center for the treatment of alcohol abuse. Con-way terminated his employment because Ostrowski had consumed alcohol in violation of the agreement.
Ostrowski filed suit in federal court, asserting claims of discrimination, retaliation and failure to accommodate a disability in violation of the ADA. The District Court granted summary judgment against Ostrowski. On appeal, the Third Circuit addressed two questions under the ADA: (1) whether Ostrowski suffered from a "disability;" and (2) if so, whether his termination violated the ADA. On the first issue, the Court rejected Con-way’s reliance on cases addressing the definition of disability as it existed before the 2009 amendments to the ADA. Specifically, the Third Circuit emphasized that the amendments require a broad definition of disability. Under the current standard, "Ostrowski’s deposition testimony and record of treatment for alcoholism is sufficient to create a factual dispute precluding summary judgment" on that basis. On the second issue, the Court determined that Ostrowski failed to show that the reason for termination â€“ violating the agreement â€“ was "a pretext for disability discrimination."
The Court, however, rejected Ostrowski’s contention that the agreement violated the ADA’s prohibition of standards or criteria that screen out an individual with a disability. In doing so, the Third Circuit recognized an important principle adopted by several courts: "employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees." The Court found
"agreements that bar an employee from consuming alcohol â€“ whether at the workplace or otherwise" valid in these types of circumstances. While "Ostrowski was subject to different standards than other Con-way employees," the "difference results from the terms of his agreement rather than disability discrimination." Additionally, the Court held that the agreement "does not restrict the ability of individuals to who suffer from alcoholism to work at Con-way" but "simply prohibits employees subject to its terms from consuming alcohol."
The Ostrowski decision has important lessons and limitations. First, it is a reminder that the 2009 amendments mean that it is advisable in most cases to assume the existence of a disability when determining what is or is not required under the ADA. Second, the context in Ostrowski was an employer required to have strict drug and alcohol policies because of safety regulations. By extension, municipal employers will be in a better position to take appropriate action by having similar policies for employees who are required to operate motor vehicles or heavy equipment, including those charged with responding to emergencies or other public safety issues. These policies establish clear expectations for employees and communicate to a reviewing court their importance. Third, it is important to know that the decision was not precedential. This means that it is not technically binding and may not be the final word on this subject. However, the decision provides a strong indication of how this type of ADA issue will be addressed in Pennsylvania’s federal courts, particularly where the Third Circuit discussed and endorsed the decisions of other courts. In this regard, the Court’s decision provides strong reassurance that last chance agreements addressing drug or alcohol usage remain an important and valid tool. These agreements often present the best middle ground for balancing the potential disability rights of an employee with the employer’s safety and effectiveness concerns. In short, a municipality can often ensure compliance with the ADA while obtaining protection from the risks associated with drug and alcohol abuse through a last chance agreement. While not resolving all issues relating to an employee’s return to work after treatment for drug or alcohol abuse, the Ostrowski decision validates the use of last chance agreements in this context.