One of the questions asked most often by employers relates to whether the enforcement of a “last chance agreement” with an employee who is recovering from drug or alcohol addiction is a per se violation of the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). The 3d U.S. Circuit Court of Appeals recently answered that question in the negative. Ostrowski v. Con-way Freight, Inc., 3d Cir., No. 12-3899, unpubl’d, 10/30/13.

Thomas Ostrowski worked as a Driver Sales Representative (DSR) for Con-way Freight, a trucking company subject to federal motor carrier safety regulations. Con-way has in place strict drug and alcohol screening programs and prohibitions, and has an Employee Assistance Program for its employees.

In May 2009, Ostrowski requested a leave of absence under the FMLA to enter a rehabilitation program for the treatment of alcoholism. Ostrowski engaged in and completed the program, and returned to work without change to his wages, hours, or working conditions. However, Ostrowski was required by Con-way to sign a “Return to Work Agreement” (RWA) in which he agreed to remain “free of drugs and alcohol (on company time as well as off company time) for the duration of [his] employment.”

Within a month after agreeing to the RWA, Ostrowski relapsed, and on October 15, 2009, once again entered into a rehabilitation program for the treatment of alcohol abuse. On November 3, 2009, Ostrowski’s employment was terminated by Con-way because Ostrowski had consumed alcohol in violation of the RWA.

Ostrowski filed a lawsuit against Con-way, alleging disability discrimination and violation of the FMLA. The lower court granted summary judgment in favor of Con-way on all claims.

Although the Third Circuit upheld the lower court’s decision, it pointed out that Ostrowski’s deposition testimony and record of treatment for alcoholism was “sufficient to create a factual dispute precluding summary judgment” on the issue of whether Ostrowski was “disabled.” In other words, Ostrowski’s case could not be dismissed for a failure to prove that he was disabled – that fact could be a question for the jury. However, the Court went on to say that Ostrowski failed to submit any evidence to show that Con-way used his violation of the RWA as a pretext for discrimination.

As other courts also have recognized, “employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees.” According to the Court, although Ostrowski was subject to different standards than other company employees who did not sign RWAs, the difference was a result of his agreement, rather than of disability discrimination.

The Court also made a distinction between any alleged disability (alcoholism) and Ostrowski’s prohibited conduct (consuming alcohol). The agreement signed by Ostrowski did not keep him from working at Con-way, but simply precluded him from drinking alcohol while employed there. Therefore, according to the Court, firing him for violating that agreement did not violate the ADA.

Ostrowski’s FMLA claims similarly failed. Although Ostrowski alleged that he was fired for seeking FMLA leave, he was unable to prove that he would not have been fired had he not requested the leave.

While this is an issue of real importance and concern to employers, this case may not provide the panacea for which employers hope. This case may have turned – at least in part – on Con-way’s obligation under the Department of Transportation Regulations to maintain strict alcohol policies for its employees and if so, the case may have been decided differently for an employer in another industry. Further, the Court’s distinction between Ostrowski’s conduct (drinking) and his disability (alcohol abuse) is one that employers may have some difficulty understanding and implementing consistently.

Therefore, before disciplining or terminating an individual who is on a last chance agreement, employers should carefully review the factual background of the situation, and seek input from the company’s human resources and/or legal department.