Employment & Labor Law for Public Safety Agencies

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Alcohol Abuse, Testing & Rehabilitation

     New York City police officers were referred to an internal counseling services unit for assistance with their purported alcohol abuse. It determined that each plaintiff suffered from alcoholism. The officers sued alleging that they were discriminated against by subjecting them to adverse employment actions based on the mistakenly perceived disability of alcoholism. The parties now agree that they were not actually alcoholics. The highest court in New York, in answer to a question certified to it by the United States Court of Appeals for the Second Circuit, ruled that Sections 8-102(16) (c) and 8-107(1)(a) of the New York City Administrative Code precluded the plaintiffs from bringing a disability discrimination claim under state law based solely on a perception of untreated alcoholism. Makinen v. City of New York, 2017 N.Y. Lexis 3075, 2017 NY Slip Op 07208.

     In order for a transit authority former employee to establish a regarded as disabled disability discrimination claim, he was not required to show that his alcoholism substantially limited a major life activity. Further, given the legal standard in the 2008 amendments to the Rehabilitation Act, the plaintiff presented enough evidence on his actual disability or record-of-impairment claims to permit a reasonable jury to find that his alcoholism substantially limited major life activities compared to most people in the general population. Summary judgment for the employer was reversed. Alexander v. WMATA, #15-7039, 2016 U.S. App. Lexis 11558 (D.C. Cir.).
     A New York City Police Department order requires that any officer who fires his weapon and such firing results in injury or death to be administered a breathalyzer. Rejecting a Fourth Amendment challenge to the order, a federal appeals court found that the order was aimed at both personnel management and bolstering public confidence in the police, and thereby fell within the definition of "special needs" when analyzing the reasonableness of the search under the Fourth Amendment. These concerns were different from ordinary law enforcement concerns, so the warrant and probable cause requirements applicable to law enforcement searches did not apply. These warrantless suspicionless tests were reasonable as a matter of law since the special needs involved outweighed any privacy interests of the officers concerning whether they had consumed alcohol. Lynch v. City of New York, #12-3089, 2013 U.S. App. Lexis 23074 (2nd Cir.).
    The Utah Supreme Court has upheld the termination of a police officer who reported for duty under the influence of alcohol. Substantial evidence supported this determination as a portable breath test administered accurately measured the officer's breath and blood alcohol content. A state statute supposedly barring a deviation from the city's policy of using urine testing to see whether an employee reported for work under the influence of alcohol did not apply to the city. Becker v. Sunset City, #20120320, 309 P.3d 223 (Utah, 2013).
     Three unions representing various ranks of a city police department challenged a departmental order requiring that any police officer involved in a shooting resulting in injury or death take a breathalyzer. They claimed that this constituted an unreasonable search in violation of the Fourth Amendment. The court rejected that argument, granting summary judgment to the city. The court found that the searches represented by the breathalyzer tests were justified under the special needs doctrine which has been used to justify drug and alcohol testing for railway employees involved in train accidents. The primary purpose of the searches was not crime control, but personnel management--to deter officers from becoming intoxicated and discharging their weapons. These special needs outweigh any privacy interest that officers might have in not submitting to the tests. Palladino v. City of New York, #07 CV 9246, 2012 U.S. Dist. Lexis 90291 (S.D.N.Y.).
     Although management required a police officer to attend AA meetings and obtain counseling as a condition of retaining his job, the time spent in those activities was not compensable for FLSA purposes. Todd v. Lexington Fayette Urban County Government, #5:08-295, 2009 WL 4800052, 2009 U.S. Dist. Lexis 115183 (E.D. Ky. 2009).
     Federal Merit Board sustains the demotion of two Border Patrol supervisors who were drinking alcohol while on duty. There was no merit to their claims that they were authorized to consume alcohol by their supervisor. Canada v. Dept. Homeland Security, # SF-0752-09-0460, 2010 MSPB 69.
     Treatment for alcoholism, while off-duty, was non-compensable. "The Court cannot find that while in treatment, [he] learned any skills that enabled him to become a more effective or valuable police officer." Attendance at AA meetings and psychiatric evaluations, although mandated by his employer, "does not constitute compensable 'work' under the FLSA." Todd v. Lexington Fayette Urban County Government, 2009 U.S. Dist. Lexis 115183 (E.D. Ky.).
     Seventh Circuit upholds a district court ruling that rejected the ADA claim of a police chief who was fired for DUI. The Act does not protect unlawful conduct, even if the employee is an alcoholic. Budde v. Kane County, #09-2040, 2010 U.S. App. Lexis 4532 (7th Cir.).
     Second Circuit upholds a NYPD policy that requires that a Breathalyzer test be administered to every officer who, whether on or off duty, causes injury or death as a result of firing his or her firearm. The Breathalyzer program is a "deterrent to officers who may consider carrying their firearms while under the influence of alcohol," and is not an "unexpected intrusion on privacy." Lynch v. City of New York, #08-5250-cv, 589 F.3d 94 (2d Cir. 2009).
     Federal court rejects an ADA claim of a police chief who was fired for DUI. The Act does not protect unlawful conduct, even if the employee is an alcoholic. Budde v. Kane County Forest Preserve, #1:06-cv-01165, 603 F. Supp.2d 1136 (N.D.Ill. 2009).
     Even if a police chief’s alcoholism problem was a partial cause of a drunk-driving incident, a city can hold the chief to the same job performance standards as other employees under 42 U.S. Code §12114(c). Budde v. Kane County, #06-C-1165, 2009 U.S. Dist. Lexis 22118 (N.D. Ill.).
    Consent is not a factor as to whether blood-alcohol test results are admissible; an involuntary test of bodily substances does not violate any constitutional rights where the search is supported by probable cause. The fact that the defendant, a police officer, was ordered to submit to the test as a condition of his continued employment does not limit the test results to administrative proceedings. People v. Carey, #1-07-3262, 2008 Ill. App. Lexis 1087 (1st Dist.).
     Sixth Circuit rejects a civil rights suit filed by an officer who, following an altercation at a bar while off duty, was required by his superiors to take a breathalyzer test. He was not "seized" when he submitted to the test, but was merely fearful that he would be disciplined if he refused it. Pennington v. Metro. Gov't of Nashville & Davidson Co., #07-5180, 511 F.3d 647, 2008 U.S. App. Lexis 447 (6th Cir.), relying on Grow v. City of Milwaukee, 84 F.Supp.2d 990 (E.D. Wis. 2000) and Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir.2002).
     Arbitrator upholds termination of an off-duty police officer for DUI. His effectiveness and credibility were "seriously compromised." City of Fairborn, Ohio and L-48 FOP, FMCS Case #03/02469, 119 LA (BNA) 754, (Cohen, 2003), relying on Ohio Highway Patrol and FOP, Case #15-03-901019-075-04-01, 96 LA (BNA) 613 (Bittel, 1991). [2004 FP Jul]
     Arbitrator sustains the termination of a city employee who refused to take drug and alcohol test, where the employee smelled of alcohol and slurred his speech. City of Hialeah and AFSCME Florida C-79, 119 LA (BNA) 210, FMCS Case #03/09144/3 (Smith, 2003). {N/R}
     Upholding a termination for intoxicated driving, the Eighth Circuit holds that a no substance abuse last-chance agreement does not violate the ADA. Longen v. Waterous Co., #02-3297, 347 F.3d 685, 2003 U.S. App. Lexis 21190,14 AD Cases (BNA) 1665 (8th Cir. 2003). {N/R}
     Off-duty police officers who were detained and subjected to urine tests for intoxication after a street fight cannot shield the test results from the prosecutor. Fagan v. Superior Ct. (People), #A102525, 2003 Cal. App. Lexis 1288 (1st App. Dist. 2003). {N/R}
     Federal court refuses to dismiss a suit challenging a police dept. rule that authorizes suspicion-based alcohol testing of off-duty officers, even in their own homes. Grow v. City of Milwaukee, 84 F.Supp.2d 990, 2000 U.S. Dist. Lexis 2292 (E.D.Wis.). [2000 FP 67]
     Alcoholic corrections counselor who was denied a transfer to a facility closer to his treatment network is not disabled under ADA; it did not limit a major life activity. Roberts v. N.Y. St. Dept. of Corr. Serv., 63 F.Supp.2d 272, 10 AD Cases (BNA) 557 (W.D.N.Y. 2000). {N/R}
     Fact that a police officer was a recovering alcoholic does not excuse the fact he lost his weapon while sleeping on a subway train. Brennan v. NYC Police Dept., #97-7779, 1998 U.S. App. Lexis 1923 (Unpub. 2nd Cir.). {N/R}
     Correctional officer loses suit he filed against his superiors and coworkers alleging discriminatory treatment because of his alcohol-related misconduct. Wallin v. Minn. Dept. Corr., 1998 U.S. App. Lexis 20085, 1998 WL 477227 (8th Cir.). [1998 FP 163 & 172-3]
     NY appellate panel upholds the chief's order that an officer attend an inpatient alcohol treatment center; officer was drunk while on duty. Roberts v. Bratton, 649 N.Y.S.2d 137 (A.D. 1996). [1997 FP 115]
     A man who used drugs 7 weeks before his was fired was a "current" drug user and therefore was disqualified from protections of the ADA. Baustian v. Louisiana, 1995 U.S.Dist. Lexis 14774 & 18143 (E.D.La.). {N/R}
     Employer who fired a man while he was undergoing alcohol treatment is hit with a $6,809,000 wrongful termination verdict. Burch v. Coca-Cola, #3:94-CV-1894-G (N.D.Tex. 1995). [1996 FP 3]
     County was not required to accommodate an alcoholic animal control officer who imbibed to the point it impaired her ability to perform. Rodgers v. Co. of Yolo Sheriff's Dept., 889 F.Supp. 1284 (E.D.Cal. 1995). {N/R}
     Federal court affirms termination of an alcoholic undercover police officer who got in fights while off-duty, even though he was required to drink liquor while on duty. Rollison v. Gwinnett Co., 865 F.Supp. 1564 (N.D.Ga. 1994). [1995 FP 115]
     NY high court reinstates county employee who was terminated for absenteeism prior to his entry into an approved rehabilitation program. McEniry v. Landi, 644 N.E.2d 1019, 84 N.Y.2d 554 (1994). [1995 FP 84]
     Handicap discrimination laws did not protect an alcoholic sheriff's dept. officer who was required to drive a vehicle and carry a firearm. Rodgers v. Co. of Yolo, 889 F.Supp. 1284, 4 AD Cases 867. {N/R}
     Arbitrator reinstates firefighter who lost his driver's license for DUI. Reno (City of) and IAFF L-731, 102 LA (BNA) 492 (Bogue, 1993). [1994 FP 147]
     Illinois justices uphold officer's dismissal for refusing to provide a breath or urine sample on demand of her superiors. Tate v. Police Bd. of Chicago, 609 N.E.2d 762 (Ill.App. 1993). [1993 FP 165]
     Department must resort to breath tests when employee, accused of drinking, voices religious objections to blood test. Hall v. New York Transit Auth., 435 N.Y.S.2d 543 (A.D. 1981).
     Appellate court sustains dismissal of a firefighter who failed to continue alcohol abuse treatment as ordered by the chief. Thomas v. City of Schenectady, 557 N.Y.S.2d 511 (A.D. 1990).
     Termination not an overly severe punishment for an alcoholic officer who failed to report to duty and missed an appointment for a medical exam. Hughes v. Ward, 551 N.Y.S.2d 217 (A.D. 1990).
     Federal court in D.C. says government must grant rehabilitation leave to alcoholic worker; reinstatement ordered. McElrath v. Kemp, 714 F.Supp. 23, 1989 U.S. Dist. Lexis 3056, 49 FEP Cases (BNA) 908, AD Cases (BNA) 1455 (D.D.C. 1989).
     W. Va. Supreme Court upholds termination of 3 police officers for unexcused absences, missing duty due to inebriation, and drinking while on duty and in uniform. Johnson v. City of Welch, 388 S.E.2d 284 (W.Va. 1989).
     Agency could terminate alcoholic employee after she failed to keep scheduled appointment with treatment staff, despite later treatment sought. Lemere v. Burnley, 683 F.Supp. 275 (D.D.C. 1988).
     Employer could reject rehabilitation of trooper who abused alcohol and illicit drugs, and provide more lenient, treatment-oriented program for alcoholics. Lavery v. Dept. of Highway Safety, 523 So.2d 696 (Fla. App. 1988).
     Alcohol impairment, although off-duty, warranted termination of lieutenant. Accused visited the station while intoxicated, then drove his vehicle into a ditch. Lilley v. City of Carmel, 527 N.E.2d 224 (Ind.App. 1988).
     New Jersey supreme court holds that alcoholism is a protected handicap under state law, but employee failed to show discrimination. Clowes v. Terminix Intern., 109 N.J. 575, 538 A.2d 794 (1988).
     Michigan court finds employee's alcoholic condition was not a handicap because not permanent. Phillips v. City of Seattle, 754 P.2d 116 (Wash. App. 1988).
     Teacher properly dismissed for sexual remarks to female students and other misconduct despite alleged alcoholism. Bradshaw v. Alabama State Tenure Cmsn., 520 So.2d 541 (Ala. Civ. App. 1988).
     U.S. Supreme Court holds that veteran's benefits may be denied to alcoholic whose condition stemmed from "willful misconduct." Traynor v. Turnage, 108 S.Ct. 1372 (1988).
     Government employee who drank a pint of gin a day awarded $150,000 in back pay; termination without counseling was discrimination. Ferguson v. U.S. Dept. of Commerce, 86-79-CIV-T-17 (U.S. Dist. Court, Fla.), Natl. Law Jour., p. 10, Mar. 21, 1988.
     School bus driver properly fired for after work DWI conviction. Mayes v. Ohio Bureau of Emp. Services, 32 Ohio App.3d 68, 513 N.E.2d 818 (1986).
     Failure to report to alcohol detoxification program, as required by court, sufficient cause for termination of compensation benefits. Hanberg v. World Wide Const., 741 P.2d 107 (Wyo. 1987).
     Probationary police officer could be terminated for failing to reveal medical treatment for abnormal liver function caused by alcohol abuse. Smith v. Ortiz, 517 N.Y.S.2d 352 (Sup. 1987).
     Employee could be terminated for failure to participate in alcoholism treatment program, although he joined alcoholics anonymous. Khalifa v. Gruys, Johnson & Assoc., 407 N.W.2d 733 (Minn. App. 1987).
     Court rejects claim that failure of employer to adequately respond to employee's alcoholism and failure to rehire after rehabilitation constituted intentional infliction of emotional distress. Bradshaw v. General Motors Corp., 805 F.2d 110 (3rd Cir. 1986).
     Ohio Supreme Court holds that alcoholism and drug addiction are handicaps; discharge of alcoholic who also used cocaine was unlawful discrimination under state law. Haglett v. Martin Chevrolet, 25 Ohio St.3d 279, 496 N.E.2d 478 (1986).
     Light penalty of civil service board reversed; court orders termination of officer for on-duty sex and drinking incident. Police Cmsnr. of Boston v. Civil Service Cmsn., 22 Mass. App. 364, 494 N.E.2d 27 (1986).
     Waiving a gun at bar while intoxicated furnished grounds to discharge a police officer with 23 years of service. Allman v. Police Bd. of Chicago, 489 N.E.2d 929 (1986).
     Off-duty officer can be disciplined for intoxicated driving; penalty of discharge too "harsh", in light of the appellant's unblemished disciplinary record. Massingale v. Police Bd. of City of Chicago, 488 N.E. 1289, 140 Ill.App.3d 378, 1986 Ill.App. Lexis 1723, 94 Ill. Dec. 896. (1986).
     Ohio Supreme Court holds that alcoholism and drug addiction are handicaps; discharge of alcoholic who also used cocaine was unlawful discrimination under state law. Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 496 N.E.2d 478 (1986).
     Fire Dept. ordered to reinstate, pay back pay to rehabilitated alcoholic. Zieglar v. Dept. of Fire, 426 So.2d 311, aff'd 478 So.2d 1357 (Fla. App. 1985).
     Chief could terminate probationary employee who sought treatment in alcohol abuse program, despite state law to contrary. John B. v. Village of Rockville Centre, 113 A.D. 2d 225, 495 N.Y. Supp. 2d 674 (1985).
     Chronic alcoholism no excuse for failure to go to work; disease analogy fails. Duncan v. Tenn. Civ. Serv. Cmsn., 674 S.W.2d 734 (Tenn. App. 1983; cert. den. Tenn. 1984).
     Appellate court upholds rule forbidding off-duty officers from being alcohol impaired. Eubank v. Sayad, 669 S.W.2d 566 (Mo.App. 1984).
     Officer's rehabilitation from alcoholism, prescription drugs and stress no defense to separation from employment. Town of Watertown v. Arria, 451 N.E.2d 443 (Mass. App. 1983).
     Drinking on duty warranted suspension and demotion of captain. Nick v. Dept. of Fire, 416 So.2d 131 (La. App. 1982).
     Civil service commission could reduce penalty from termination to 120 day suspension for misconduct during off-duty drinking incident. Barnett v. New Orleans Police Dept., 413 so. 2d 520 (La. App. 1982).
     Repeated off-duty intoxication, misconduct, warranted termination of state trooper; taking “the cure” is no excuse. Kenny v. Connelie, 450 N.Y.S.2d 908 (A.D. 1982).
     Department must resort to breath tests when employee, accused of drinking, voices religious objections to blood test. Hall v. New York Transit Auth., 435 N.Y.S.2d 543 (A.D. 1981).
     New York PERB no longer requires departments to bargain over breathalyzer and polygraph tests for narcotics addiction. Div. 241, Amal. Transit Un. (AFL-CIO) v. Suscy, 405 F.Supp. 750 (N.D. Ill. Dec. 30, 1975).
     Alcohol related charges and other infractions sustain termination of assistant fire chief; hearing proper. Foley v. City of Plattsburgh, 437 N.Y.S.2d 798 (A.D. 1981).
     Off-duty intoxicated and aggressive behavior by fire fighter was not subject to punishment, arbitrator rules. IAFF L-2296 and City of Pendleton, (LaCugna, 1981); see also: Kennett v. Barber, 31 So.2d 44 (Fla. 1947); State v. Wells, 121 Ohio St. 139, 167 N.E. 362 (1929), Latham v. Dept. of Police of New Orleans, 394 So.2d 794 (La. App. 1981).
     Evidence of prior instances of drinking admissible in aggravation of punishment. Officer properly terminated for on-duty intoxication. Appeal of Eber, 415 A.2d 1253 (Pa. Cmwlth. 1980); Reichenbach v. Civil Serv. Cmsn. of Wilkinsburg, 417 A.2d 1292 (Pa. Cmwlth. 1980).
     Repeated off-duty intoxication justified termination of employee. McIntosh v. Monroe Munic. Fire and Police Civ. Ser. Bd., 389 So.2d 410 (La. App. 1980).
     Use of liquor on duty justified termination of lieutenant. Hall v. Lyons, 389 N.E.2d 1309 (Ill.App. 1979).
     Reporting for duty with odor of alcohol on breath justifies termination of probationary employee. Lloyd v. Comm. Bur. of Correction, 401 A.2d 419 (Pa. Cmwlth. 1979).
     Termination was too severe a penalty, where on officer with no disciplinary record went home 20 minutes early to meet an electrician and filed a false report about the incident. Kreiser v. Police Bd. of Chicago, 69 Ill.2d 27/at 31, 370 N.E.2d 511/at 513 (1977). {N/R}
     Termination was too severe a penalty, where an officer with no disciplinary record used a police vehicle while on duty to tend to his horses that had been sprayed with a chemical substance and had been cut on the neck. Christensen v. Bd. of Fire and Pol. Cmsnrs., 83 Ill.App.3d 472/at 478, 404 N.E.2d 339/at 343 (1977). {N/R}
     Termination was too severe a penalty where an officer with no disciplinary record told his superior he was going to traffic court when he in fact was appearing in his own divorce action. Humbles v. Bd. of Fire & Pol. Cmsnrs., 53 Ill.App.3d 731/at 734, 368 N.E.2d 1049/at 1051 (1977). {N/R}
     Sufficiency of charges of alcoholism upheld. Fitzgerald v. Lious, 44 N.Y.2d 660. 376 N.E.2d 192 (N.Y. 1978).

See also: Disciplinary Punishment, Drug Abuse, Drug Screening and Handicap/ Abilities Discrimination.

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