No Foul for Termination Over Failed Breath Alcohol Test

Kollman & Saucier
Kollman & Saucier

Under the Americans with Disabilities Act (ADA), employers can require employees to not be under the influence of alcohol at the workplace.  The ADA also allows employers to hold alcoholic employees to the same standards as other employees, even if their behavior is a result of their alcoholism.  In Kitchen v. BASF, No. 18-41119 (5th Cir. 2/28/20) the Fifth Circuit reiterated these points, holding that an employer did not violate the ADA when it discharged an employee with a history of alcohol abuse who signed an agreement to be tested at work for alcohol and then failed a breath alcohol test.

Kitchen worked for BASF from 2006 to 2015.  During this time, Kitchen was twice convicted of driving while intoxicated (DWI).  Kitchen even drank (alcohol) at work, even though he knew it was against company policy.

BASF allowed Kitchen to take leave to undergo inpatient and outpatient alcohol-abuse treatment. In May 2014, while on leave from work, Kitchen was arrested for and convicted of DWI with a Blood Alcohol Content (BAC) of 0.15.  BASF allowed Kitchen to return to work in October 2014.  As part of his return to work, Kitchen signed a Return to Work Agreement which included a requirement that he submit to future breath alcohol tests.  Also, as part of BASF’s post-rehabilitation alcohol testing policy, he signed a separate Testing Agreement under which a positive test for alcohol could result in termination.

On October 24, 2014, Kitchen signed a Final Written Warning, acknowledging that any further “violations of company policy, testing positive for alcohol at work, or a felony conviction of DWI could result in termination.”  The BASF company policy regarding post-rehabilitation alcohol testing did not define a minimum level of BAC for test results to be considered “positive.”

On September 28, 2015, Kitchen underwent a breath alcohol test at work where he provided BAC samples of 0.014 and 0.010 — indicating the presence of alcohol in his blood.  Based on these test results, BASF believed Kitchen was in violation of BASF’s alcohol policy, the Return to Work Agreement, and the Final Warning.  BASF discharged Kitchen on October 2, 2015.  He then sued BASF under the ADA and the Age Discrimination in Employment Act (ADEA) and lost on summary judgment.

On appeal, the Fifth Circuit concluded that Kitchen failed to provide any evidence: (a) that he was discharged due to BASF’s “animus against him as an alcoholic”; (b)  of a causal connection between his discharge and his alcoholism; and (c) that BASF’s legitimate, non-discriminatory reason for discharging him (violation of policy and the agreements) was pretextual.  BASF had “done more than necessary to accommodate Kitchen in a reasonable manner by allowing him several leaves for treatment, even after he had been convicted of DWIs and violated company policy by consuming alcohol while at work.”

The case is a reminder that employers may hold employees accountable for policy violations without violating the ADA.  Discharging someone for working while under the influence of alcohol is not equivalent to discharging someone because of their alcoholism.  The ADA permits employers to treat alcoholic employees the same as other employees “even if any unsatisfactory performance or behavior is related to the … alcoholism of such employee.”


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