ADA and alcoholism - Need quick response

GLC

Last Thursday at a retirement luncheon, the manager of the retiring ee came to the lunch drunk. As soon as he came in, he fell on the floor. People sitting near him picked up on it eventually that he had been drinking because his speech was slurred. I was on the other end of the table and did not hear him speak. Quite frankly, I did not think much of him falling because we've not had problems with him drinking on the job. Come to find out, his staff had been suspecting for some time that he had been drinking on the job for some time but failed to tell sr. mgmt. His boss and I went to his office to confront him after the luncheon because many of his staff called me out of concern. One of his staff even drove him back to the office. This mgr. finally admitted that he had relapsed and starting drinking again and abusing prescription drugs because of an injury to his body. He is a former alcoholic, been clean for 10 years. However, he continued to deny that he had been drinking on the job. We were going to drug test him but did not. We do have a drug-free workplace policy that he violated so I suspect he thought he would be fired. We called our mental health provider, and he went in for an assessment today. These are my questions:

1. If he goes in for inpatient stay, wouldn't that be FMLA?

2. I have read conflicting things on the ADA and recovering alcoholics. Are these statements true? Even though he is a recovering alcoholic, he can be fired if he is found drinking on the job. We just can't fire him for BEING a recovering alcoholic. He has to violate some company policy.

3. Is there any other reason we could not fire a recovering alcoholic or any recovering addict for that matter because of the ADA.

4. Since he violated our drug-free workplace, did the ADA prevent us from firing him?

TN HR

1-Yes, provided he meets the legal requirements.

2-Yes, he can be fired. The law protects recovering alcoholics, once you drink (as he did) you are no longer in recovery.

3-Anything that is discriminatory.

4-No.

Good luck.

LivindonSouth

You could have fired him if he violated your policy. He had no ADA protection at the point of falling down and being drunk at the company function. If he had it prior to that, he gave it up at that point. The ADA does not extend protection to anyone who is in violation of company policy. You are not precluded from firing him for other offenses now or later even though he may later have ADA protection again, when sober, following treatment. Since you initiated contact and made the referral, I think you've waived your opportunity to terminate for the time being.

LindaS

Maybe I'm missing something but WHY did you choose not to test him? If the EE was as impaired as you state above, you should have immediately taken him in for "reasonable suspicion" testing and sent him home for the remainder of the day. At this point I don't think you can terminate him for violating your policy as you do not have any definitive proof that he has been in violation. Based on your statement above, the EE has effectively ensured ADA protection for his treatment. By this I mean that he has admitted to you he had a problem, you don't have anything (other than hearsay) to prove he was drinking on the job and is now more than likely going to go for treatment (this is covered under ADA).

Unless the EE shows up for work under the influence, or misses work due to being under the influence, he is protected. You cannot terminate for this reason at this point.

LarryC

I would like to see some lawyers chime in here about how the ADA treats alcoholism differently than drug addiction. It is my understanding that someone can be a practicing alcoholic and still be protected by the ADA as having a disability. A drug addict is afforded ADA protection only if he/she is recovering and currently not using.
However, an employer may discipline an alcoholic if if his/her drinking adversely affects job performance or if the essential job functions can not be met. An employer may also prohibit the use and influence of alcohol on the job.

LivindonSouth

Maybe I'm dense Larry, but I'm not sure what you're asking?

For an alcoholic to take a drink (I assume that's what you mean by practicing alcoholic) is not illegal and someone could not be terminated for that alone, without ADA violation, assuming the drink was not taken at work or caused one to be under influence AT work. The ADA protection extended to such a person only protects them in the employment context in that the employer cannot fire them simply for having been an alcoholic or participating in a program of recovery. It also requires reasonable accommodation consideration such as a few minutes of flexibility for attending meetings during work hours and the like.

However, since illegal drugs are, well, illegal, a person partaking of them is breaking the law and has no ADA protection, period.

Sorry, you asked for the opinions of attorneys.

marc

I am not an attorney and don't even play one on TV (the sitcom deal fee through and I had to fire my agent).

Since the guy confessed to the relapse and abuse couldn't you put him on a development plan that required enrollment in a program? Also, the injury to his body might cause his medical provider to issue an official presription, along with physical therapy, etc to treat the condition.

Point is, there are things he can do and the company could require to get him back on track, at least in the employment context. If, after having done those things, he falls down during company time again, then termination could follow.

HRinFL

Expanding on Marc's comment, you can make the compliance and completion of the EAP program a condition of continuing employment. If the ee does not comply with the rehab program (i.e. skipping meetings, counseling sessions, fails a random test, etc.), then the ee could be termed. This would have to be put in writing and explained to the ee from the beginning.

hhaynal

I am going to throw a note of caution on making completion of a rehab program a condition of continued employment. I have struggled with this a few times in recent months and what the answer turns upon is that if the employee fails to complete the program (because they continue to drink), the employer is effectively terming them for being an alcoholic which is protected under the ADA. There is more to this but I'm trying to be brief.

I know, we could go round and round on this, but I'm just offering a note of caution.....if I see a different trend in the case law, I'll post.

LindaS

Hhaynal - I have to respectfully disagree with your statements regarding the failure to complete a rehab program. In my opinion, if you have an employee who fails a reaonable suspicion drug/alcohol test and you elect to allow the EE to maintain employment as long as they attend rehab, etc. and they fail to complete the program, you are terminating them for not following company rules, not their alcoholism.

That being said, I have found that forcing someone into treatment does not work. In every instance I have encountered wherein we go down this road the EE has not completed their rehab and has elected to quit rather than continue employment. Sad but true.

hhaynal

[font size="1" color="#FF0000"]LAST EDITED ON 08-04-05 AT 06:51AM (CST)[/font][br][br]Linda, I agree with your argument. But, what if, the employee argues, Look, I went off the wagon, but I know I can lick this disease. Just give me another chance at rehab....I know I can dry up this time. Is it "reasonable" for the employer to offer the employee another chance at rehab? Would the courts not consider this a "reasonable accomodation"? And then, what about the next time? How many bites at the apple?

I hope you can understand why I am on the fence on this one and just offered a note of caution.

Heidi

HRinFL

<<what about the next time? How many bites at the apple?>>

This is where there is a need for a well defined policy for substance abuse. How does your organization want to handle it. If the ee comes forward the first time voluntarily, do you allow them to stay employed, or do you term? What if they are tested and have a positive screen? If they have a second positive, or voluntarily admit a second time, how do you address it. You should determine what is in the best interest for your company, devise, develop, and implement a policy that you can consistently monitor and enforce. To answer your question, you don't have to give them any bites...if they admit they are using or have a positive result, you can term, there is no protection under the FMLA if they are currently using. The ADA prohibits making employment decision because they have an addiction/disease.

I think we are generous. If there is a positive screen, or if the ee voluntarily admits to substance abuse, then we enroll them in our EAP program. The ee acknowledges that s/he will attend counseling sessions and will agree to testing at the discretion of the company. They also acknowledge that a second positive test, for any reason, will result in discharge. If they agree and complete the program, they can remain employed. If not, or "fall off the wagon," they are termed. BTW, while participating in the program, any related absences, etc. are coded FMLA and are not held against the ee.

WT

You probably already know this but alcoholism is defined as a disease. Thus you cannot terminate for alcoholism anymore than for heart disease. It has already been pointed out that you did not test and thus have no evidence. If you have reasonable suspicion, test. If the employee refuses the test, make clear that you will terminate if they refuse. If they continue to refuse, terminate. In that case, they knew the consequences of a refusal and continued with the refusal anyway. Just remember, not taking action at a given time is just as definative a decision as taking action. You did not test or terminate and thus, your lack of action has given the individual another chance. If he makes the best of it, all well and good. If not, remember this next time.

LivindonSouth

I've got a problem with your phrase "continue to refuse". Ordering one to submit to urinalysis is not a discussion and is never a give and take or an exercise of convincing the employee that he should or must or else. If the policy is there and the employee refuses, terminate him, immediately, end of discussion, box his personal belongings.

To hell with discussing it further and telling him if he does not comply he will be terminated. That would be identical to saying, "John, you struck your supervisor, if you do it again, we're gonna terminate you." John already violated the policy and his action was a terminating offense.

Throughout this discussion, I do not think any of us has advocated firing the individual 'because he is an alcoholic'.

WT

There is not always a written policy for a given issue. If there is such a policy, rely on the policy. If not, you need never debate the issue. Tell the employee what you require. However, if a person refuses to comply, tell them clearly the consequences of such refusal. If they continue to refuse, take action. Any time a third party reviews your action whether at arbitration or in court, they will always ask whether the person knew that what they were doing was unacceptable and what the consequences would be. Telling a person these things is just a little extra insurance if you need to go up in front of a third party to justify your actions.