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Wednesday, June 18, 2014

Tough Love Employers

By Tommy Eden
Anthony DePalma was Assistant Fire Chief for the City of Lima, Ohio, when he developed kidney stones and became addicted to prescribed narcotic pain medications. DePalma voluntarily checked himself into Sheppard Hill, an addiction treatment center. DePalma had not violated any work rules and his performance and behavior at work were excellent. DePalma had been at Sheppard Hill for one week when be was told by the Lima Fire Chief to either sign a Last Chance Agreement (LCA) or he would be fired; which DePalma signed. The following year DePalma was hospitalized with a kidney stone and was given painkillers while awaiting surgery. When he returned to work he was required to submit to a drug test, which revealed the presence of the painkillers. The City terminated DePalma pursuant to the signed LCA.

DePalma appealed and eventually the Ohio Court of Appeals reversed, agreeing with DePalma that the City should not have been permitted to use his voluntary act of seeking substance abuse treatment as a basis for changing the terms of his employment. The Americans with Disabilities Act (ADA) prohibits employers from changing the terms of employment for a person with a disability just because of that disability, 42 U.S.C. Section 121l2(a). Although a qualified individual with a disability does not include an employee currently engaging in the legal use of drugs (Section 112114(a)) an individual is considered qualified if he or she is participating in a supervised rehabilitation program and is no longer engaging in such use, Section 12114(b)(2). The goal of these provisions is "to encourage drug addicts to seek treatment without worrying that doing so will cost them their jobs,” ruled the Court. Because the LCA was invalid under the ADA, the Court found that the subsequent discipline for its violation could not stand.  The case is DePalma v. City of Lima.

Common Sense Counsel: an employee’s voluntary admission into substance-abuse treatment, or coming forward and saying "I have a problem - I need help,” are both ADA protected events. Such triggers an employer’s obligation to listen and consider what the employee has to say and present and not take disciplinary action such as a last chance agreement. Rather consider entering into a work continuation agreement after gathering information from the treatment provider, medical review officer or counselor and having an interactive discussion with the employee. Such an agreement reduces the risk of a workplace accident while keeping the employee accountable in the rehabilitation process. It’s tough love and risk reduction all wrapped into one document with a signature at the bottom. If the employee falls off the wagon, then move to the LCA, not automatic discharge. In these cases compassion and patience are typically rewarded with a turnaround employee or smooth termination.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at