Time & Attendance
By Jon Hyman
Oct. 2, 2014
A few months ago, I had to fly to Houston for a hearing. After the flight took off, I witnessed the most impressive bit of alcohol consumption I’d seen since my college days a couple of decades ago.
The flight attendant had barely finished asking the guy sitting to my right if he wanted something to drink before he blurted out, “Four vodkas with tomato juice!” I watched in awe as he guzzled all four drinks almost as quickly as she handed them to him. I was less in awe as he then passed out on my shoulder, but that’s a story for another day.
That had been the most impressive feat of drinking I’ve encountered in some time … until I read about Blazek v. City of Lakewood.
Jonathan Blazek worked in the streets, construction, maintenance and repair department for the city of Lakewood, Ohio. His job followed a seasonal cycle — leaf pickup in the fall, snow removal in the winter and Christmas tree pickup after the holidays. His job required him to maintain a commercial driver’s license.
For reasons that only Blazek could explain, on March 13, 2012, he arrived at work with a “21-ounce bottle” of whiskey stashed in his truck. During his one-hour lunch break, he drank the entire bottle — the equivalent of 14 shots. At a post-lunch meeting, Blazek’s boss correctly suspected something was “off.” Even though Blazek denied drinking, Blazek’s boss took him to the police station, where he blew a 0.132 blood-alcohol percentage, 65 percent more than the legal limit of 0.08, and more than three times the limit for drivers with a commercial license.
The city charged Blazek with various violations — being intoxicated at work, driving a city vehicle while intoxicated, drinking at work and possessing alcohol on city property. Each was a fireable offense under the city’s alcohol in the workplace policy — even for a first-time violator. Yet, this was not Blazek’s first belly-up to the boozing-at-work bar. He admitted to his employer at his pre-disciplinary hearing that he had been drunk “at work and/or drove city vehicles, on a handful of occasions in the [preceding] several months. … This includes driving a snowplow under the influence during a snow storm.”
Not surprisingly, the city fired Blazek.
Somewhat surprisingly (at least under the circumstances of Blazek’s termination), Blazek sued the city for disability discrimination, claiming that the city had fired him because of, and failed to accommodate, his alcoholism.
The federal appellate court reviewing the dismissal of his lawsuit disagreed, concluding that:
“Plaintiff admitted driving a City snowplow during a storm while intoxicated. Plaintiff further admitted that [it] was not his only time drinking on the job. Plaintiff’s violations of City policies dwarf those of the other employees whom Plaintiff offers up as comparisons. The most analogous is [Thomas] Bork, who also operated a City vehicle while drunk — and was fired. Even if we assume that none of these fifteen employees was disabled (and there is no reason to make this assumption), the facts of their cases are simply too different from the facts of Plaintiff’s case to be of use. Plaintiff therefore cannot show that Defendant’s legitimate reason for terminating him was pretextual.”
The ADA protects “alcoholism” as a disability. There is a huge difference, however, between alcoholism, which the ADA protects, and being drunk at work, which the ADA absolutely does not protect. The ADA is never going to cover any employee who uses substances at work, let alone one who’s in an altered state as a result.
You are seldom in the wrong for firing an employee who’s drunk at work. It’s just plain sad that we need a federal appellate court (with all of the associated legal expenses) to remind us.
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