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CALIFORNIA LAW UNCLEAR: COURT

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SAN FRANCISCO-California's Alcohol & Drug Rehabilitation Act fails to give employers adequate guidance on how to deal with employees in rehabilitation, says a state appellate court.

The court ruled employers cannot be successfully sued in wrongful termination suits for emotional distress and punitive damages under provisions of the Act.

The case in Sullivan vs. Delta Airlines involves the late Joseph A. Sullivan, who was discharged by Delta Air Lines when he refused to return to work after undergoing alcohol and drug rehabilitation. He died of AIDS before his case was resolved.

In overturning a lower court decision, the appellate court said in the ruling issued last month that the ADRA expresses three "potentially conflicting" policies: accommodating employees who are in rehabilitation; avoiding undue hardship on employers; and intolerance of alcohol and drug abuse that interferes with employee performance.

"In fact, it is difficult to determine precisely what employer conduct" is prohibited under this law, says the decision.

Unlike race, gender and age, which "are not the products of free choice," rehabilitation does not deserve special protection, says the appellate decision. "There is no recognized right of an employee to voluntarily enter a drug or alcohol rehabilitation program."

In another decision stemming from the same case, the California Supreme Court had ruled earlier this year that heirs of a plaintiff who received a jury award for emotional distress but died before the defendant's appeal was complete are entitled to receive the award if it is upheld (BI, May 12).

Assuming it is not overturned on appeal, this latest decision means Mr. Sullivan's mother, Alene M. Sullivan, cannot collect the $275,000 for emotional distress awarded by a jury in 1994, according to Delta attorney Gilmore F. Diekmann Jr. of Bronson, Bronson & McKinnon in San Francisco. Mr. Sullivan's attorneys could not be reached for comment.

Mr. Diekmann noted many courts consider alcoholism to be a handicap under provisions of the federal Americans with Disabilities Act and the state Fair Employment & Housing Act.

However, to the extent that the ADRA goes beyond those laws' requirements, this decision means that employers will not be held liable for emotional distress and punitive damages, said Mr. Diekmann.

Alene M. Sullivan, as special administrator, etc., vs. Delta Air Lines Inc., Court of Appeal of the State of California, First Appellate District; No. A066778.