As other courts have recognized, «employers do not violate the ADA simply by entering into reintegration agreements that impose different terms of employment than other workers.» Although Ostrowski is subject to different standards than other employees of the company who have not signed a RWA, the difference is due to his agreement and not to discrimination on the basis of disability. Although California`s case law on LCAs is not plentiful, the courts have secured last-chance agreements. For example, a complainant sued in Le Gosvener v. Coastal Corp. 51 Cal. About 4th 805 (Cal. Ct. App. 1996), his employer, accusing his employer of failing to properly house his alcoholism and illegally dismissing him.
The complainant had signed an ACF with his employer and then injured her. Id. at 809. The California Court of Appeals found that the employer had «properly exercised its contractual termination rights [Gosveners] » because Gosvener had «violated the explicit terms» of the ACA it signed. Id. at 814. (Note that the Colmenares decision tipped Gosvener as it suggested that «essential limitation» instead of «limit» was the right test to identify a disability. However, the other farms in Gosvener are not affected by Les Colmenares.) For example, in Gosvener, the employer signed two separate LCAs with the complainant, who participated twice differently in drug treatment programs before the employer finally resigned. When the employer first learned that the complainant had problems with alcohol and methamphetamine abuse, he referred him to a private clinic, made money available to a private physician, placed him in a less stressful job while continuing his higher pay rate, and asked him to return to work during therapy. Even after violating the terms of the first agreement, the employer performed a second AA with him and gave him a second chance to follow another treatment program. It was only after the employee breached the second AIC that the employer made the decision to resign.
One of the tools that many employers use to provide discipline for the recovery of addicts in a way that is designed to prevent discrimination on the basis of addiction is the «Last Chance Agreement» («LCAs»). A last-chance agreement is an agreement between the employer and the worker, usually used by employers to discipline a worker who regularly violates or violates labour rules because of his or her addiction to illicit drugs and alcohol, and who has reached the point of dismissal. An AIC is a structured agreement that allows a worker to continue (or even return to employment), under certain conditions that generally include: suspension, successful treatment program, presentation of random or regular substance testing at the employer`s discretion, improved work performance and agreement to waive the use of illicit substances and/or alcohol. THE CAAs also often provide that when the employee resumes the use of illegal drugs or alcohol or the employee does not meet performance standards, the employee`s employment ceases immediately without further warning. The court found that DePalma`s commitment to sign an ACA simply because it was seeking treatment for addiction is contrary to the ADA. The court found that DePalma`s resignation was not appropriate. The Tribunal justified this decision by the fact that the ACA was a form of discipline and that the firefighters had changed the terms of his employment by requiring him to sign the contract as soon as he had entered rehab: one of the lessons to be learned from these cases might be that a «last-chance» agreement is an enforceable component of the appropriate provisions, provided that, given the history of attempts to collaborate with this employee, it is indeed the worker`s last chance to get a job.