Liability Insurance vs ADA

byoung

I am Director of HR in a small hospital in a small western community and I need some input into a new situation for us. We have had a plan to address employees with addiction issues. Should an employee have a positive drug screen, or get a have an incident that indicates problems like DUI's - we offer them the opportunity to seek rehab/counseling, and we do a return to work agreement with them regarding the addiction. However, just this week our liability insurance agent came in to advise us ( our renewal is now ) that they will not insurance us if we have any employee that as part of their job description is to drive - like ambulance, home health or maintenance - and they have any sort of critical driving violation -such as a DUI. Here's the question - we currently have an employee that several months ago received a DUI - we offered help - he accepted - have a return to work agreement. Can we now just terminate him because we can not obtain liability insurance for the whole facility because of his record? Would just eliminate the drive part of his job if we could - but as a little facility we only have a few maintenance guys - they have to drive to plow snow, get the mail, haul things etc.. Would termination be a violation of ADA? Even in the future - should an employee come forward and advise us of a drinking problem and just got a DUI and they ask for help - can we terminate them because of this insurance issue? How do I handle this? Also this employee has been with us for several years and this is the first time he has ever had a issue. We have examined other position placement - but there is nothing that would provide like pay, duties or hours. Would appreciate feedback ASAP - as they insurance company wants our answer by Wednesday June 1st.
Thank you.

LarryC

Welome to the forum, Bev. We run into similar situations here too. We have a fleet of trucks and drivers for which we have to monitor driving records. A DUI is definitely a disqualifier for the same insurance reasons you stated. Since driving is an important essential job function (I think I was redundant there), we either will limit them to being a "ride along" when the schedule permits or terminate them. Going without liability insurance is not a reasonable accommodation. Exposing yourself to the punative possibilities by knowingly having a recent DUI out there driving for you would not be an option either. The plaintiff's lawyers scour company records and driving records looking for that "chink".

Hopefully, more forumites will post some additional information for you too. Good luck!!

E Wart

Are you just talking about one employee? And it sounds as if his driving is limited (not like driving is the primary part of his job)?
If both yes answers, I would go to the liability insurance company, explain the situation and your "former" policy (will mention later) and see if they will grandfater this one person in on your liability policy, especially if driving is something like 25% of his job and some of his driving is on "company property". A lot ot times they will agree to this, especially if you tell them what a good employee he has been, that driving is a limited part of his job, and that he understands that he is "out" if it happens again.
Whether or not they say yes to the above, I would work with them to establish a new policy (especially when it comes to someone who drives for the company business, if this is an essential part of their job). Adopt this policy, distribute and explain it to all employees, and get some type of signed acknowledgement from ALL employees.
If insurance company says no to the above, you have no choice but to terminate the employee if they cannot do the esential parts of their job and if you can't make arrangements for someone else to do the "driving part" of his job until this DUI drops off (3 years +).

E Wart

SMace

You say that you have no job w/same pay, duties or hours. Before termination I would offer him any open position that he is qualified for- even if it is a demotion. You say he is a good employee and it sounds like you want to keep him. He may rather take a demotion than be unemployed.

lorrie

I agree that it might be worth your time to go to the insurance company and ask for an exception. Our agent has been able to 'negotiate' driving records with our insurance company on limited circumstances. Perhaps if they know the policy from here forward is 'no dui's in past 5 years' and the person you wish to grandfather in has an otherwise stellar record and is willing to let them see the records showing his completion of treatment etc.. There's a lot of ifs, but worth a shot.

I also agree that this person may think a demotion is better than losing a job. We have done this also, and if the employee does well we put them back to driving when the time frame is acceptable.