Article courtesy of SBAM Approved Partner ASE
Author: Michael Burns
Alcoholism is considered a disability under the Americans with Disabilities Act (ADA). However, being at work under the influence of alcohol is not protected by the law. This legal dichotomy forces the employer to walk a fine line when an employee appears to be, or is suspected of, or actually is, intoxicated while at work.
You may certainly approach the employee and ask if she is having trouble performing her tasks or duties for any reason. You should also monitor and document the employee’s job performance if working under the influence is just suspected. And certainly if the work the employee is doing can present a danger to herself or others, then you should immediately remove the employee from the job. Such removal is actually required, not just recommended, if the employee is covered by the U.S. Department of Transportation regulations and drives a commercial vehicle.
But what if the employee is not visibly impaired but has been exhibiting poor work behaviors such as absenteeism, tardiness, insubordination, and you suspect alcoholism is the problem? Focusing on the job performance is the advisable approach. If the employee admits an alcohol problem exists, you should engage the employee in a dialogue to determine if a reasonable accommodation can be found and implemented. This “interactive process” is required by the ADA. As the employer you may choose to try to help the employee, although this is not legally required under the ADA. You can offer the employee rehabilitation and counseling as well as time off for rehabilitation. Reasonable accommodations such as a modified work schedule to permit an employee to attend a self-help program or to “detox” are common. But they may have to be supplemented by Family and Medical Leave Act (FMLA) time off and protection (assuming your organization is covered by that law). Does your organization have an Employee Assistance Program (EAP)? An EAP can provide valuable service in substance abuse cases. ASE’s Policies and Practices survey reports that over 55% of employers make an EAP available for employees to use to get help.
The real challenge arises when the employee insists she does not have a problem.
The wise course is to sit down with the employee and HR, specifically state the unacceptable behavior(s) observed, and explain actions that will be taken when misconduct or poor performance results from violation of the organization’s “no-alcohol” policy. If at that point the employee admits to a problem, then the ADA is applicable and the “interactive process” needs to follow. If on-duty impairment is clearly present at the time, whether the employee admits to it or denies it, you should send the employee home (but make sure someone else drives her).
If you suspect the employee is under the influence but she denies it, you can send her for testing. Having a Substance Abuse policy provides for that step. However if the employee is not visibly under the influence but exhibits suspicious behavior (e.g., appears to be hung over) all you can do is continue to document the behaviors and advise the employee that she will be held accountable if the poor performance/aberrant behavior continues without correction.
To repeat, the disability of alcoholism does not protect against the consequences of poor performance or conduct that may be a result of being intoxicated or hung over. You may hold the employee to performance standards applicable to the job. As with any poor or improper performance of work, even when alcoholism is the suspected cause, you should apply the organization’s disciplinary policy and process as you would with any other employee. And always document conversations and any discipline given.
You may also elect to offer what is called a “firm choice” or “last chance agreement.” This can be used in a situation where the person’s employment could otherwise be terminated for poor performance or misconduct resulting from the alcoholism or substance abuse. Under this agreement the employer agrees not to terminate the employee in exchange for the employee agreeing to undertake treatment for the alcoholism, refrain from the use of alcohol during work and avoid further workplace problems. If the employee violates the agreement, termination of employment would be implemented.
Though oftentimes overshadowed by other types of substance abuse issues these days (mainly opioid abuse), alcoholism still predominates as a workplace ill. Keeping in mind the above can help an employer address the problem rather than just live with it.