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Dealing with alcoholism in the workplace

The January 2008 Legal Report from the Society of Human Resource Management authored by Beth M. Andrus explores in depth the unique challenges that employers face in dealing with an alcohol dependent employee. According to the report, the Americans with Disabilities Act (ADA) gives guidance and substantial flexibility in addressing problems; however, it does not answer all of the questions that such a situation presents. But a combination of thoughtful ADA analysis, some common sense management practices and appropriate legal advice should be the guide.

Here are some of the highlights:
• Employees who are alcohol-dependent may be held to the same performance and behavior standards as nonalcoholics (42 U.S.C. §12114(c)(4)).
• Employers can prohibit employees from using alcohol or being under the influence of alcohol in the workplace.
• Employers may discipline or discharge employees for inappropriate conduct generated by alcohol abuse, including at after-hours business events, as long as the same standards apply to all employees.
• If an employee appears to be inebriated at work, the employer has the right to ask them if they are in fact under the influence of alcohol.
• The courts are divided on whether alcohol dependency is a disability under the American Disabilities Act (ADA). Some courts have ruled that alcohol dependency is a “disability” only if the condition substantially limits a major life activity.
• Injudicious behavior as a result of excessive alcohol may be a one-time aberration and does not make employees alcohol dependent and therefore covered by the ADA.
• Employers are not required to condone criminal behavior or egregious misconduct, such as profanity or driving under the influence, which may arise out of an employee’s alcohol dependency.
• Employers need not retain employees who pose a direct threat of injury to the health or safety of themselves or others (42 U.S.C. §12113(b)).
The 9th Circuit Court of Appeals (one of the most employee-friendly circuits in the nation) approved the following steps as “reasonable accommodation” for an alcohol-dependent employee.

The employer:
• Informs the employee of available counseling services.
• Provides the employee with a “firm choice” between treatment and discipline.
• Affords the opportunity for outpatient treatment, with discipline for continued drinking or a failure to participate in treatment.
• Provides the employee with an opportunity for inpatient treatment, if outpatient treatment fails.
• Discharges the employee only after a second relapse.
The courts are fairly unanimous in finding that, in the absence of misconduct or misuse of alcohol on the job, employers should grant at least one leave of absence for an alcohol-dependent employee to participate in a treatment program.

In alcohol-dependency cases, courts have found that the following accommodations are not reasonable:
• Paid leave for treatment
• Compensation to pay for an employee’s chemical dependency treatment
• The elimination of an essential function of the position
• The creation of a part-time position when the essential functions of the position demand a full-time employee
• Advising the employee on the option of taking a disability retirement
These guidelines appear to apply broadly to all employers, regardless of size.
According to the report, “The employer is responsible for reasonably accommodating known disabilities (42 U.S.C. §12112(b)(5)(A)). Generally, if the employee does not disclose the condition, and the employer has no knowledge of it, the issue of accommodation does not arise. The duty to accommodate, however, does arise if the employer is told about the disability by a third party or becomes aware of it through observation. The employee need not say any “magic words” to trigger a duty to accommodate; the employee, however, usually must ask for some type of job assistance. The employer is then responsible for evaluating the various accommodation options. The employer need not provide the “best” accommodation, as long as the offered accommodation enables the employee to perform the essential functions of the position.”

Employers need to send a clear message – do not drink alcohol at work, and limit any such drinking while traveling on business, while operating a company-provided vehicle or attending public events on behalf of the company. The company has the right to take disciplinary steps when employees do not comply, including a change in job responsibilities, the removal of supervisory duties or the removal of company privileges, such as a company-provided vehicle.