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. |