Alcohol & ADA protection

AnnGee

We have an employee who was drug tested under our post on the job injury policy. We have been informed he tested positive for alcohol. The company owner has spoken to him before about smelling alcohol on his breath. He currently drives a company van to and from work for the convenience of the company. 1st question, since he stated today "I need to get counseling", does employee now qualify for protection under ADA? 2nd is a last chance agreement of some kind appropriate? And lastly, since this is now company knowledge, what if any risk does our company have as far as driving a company vehicle. Thanks for any help.

marc

Hopefully James will weigh in on this. He recently published a newsletter regarding a poll he made of forum attorneys. Amazingly enough, they concluded that ADA protection does extend to alcoholism. But think what the accomodation(s) would be? You do not have to put up with alcohol related problems at work, but you may need to accomodate withdrawal programs that impact some time away from work. Post recovery issues would not be as difficult with respect to time away from work. I readily admit I am not an expert and I have read the opinions of other forum posters that disagree about ADA. That's why I hope James can chime in and perhaps direct you to his recent article.

Good luck.

Don D

A person who attempts to invoke the 'I need help' argument AFTER testing positive, has no protection. That's clear in the law. As to whether or not you should or must have a 'last chance agreement', that depends entirely on your policy and prior practice. And lastly, your company is inviting significant risk if you let someone drive a company vehicle who tested positive in a breath alcohol test following an on-job accident. SIGNIFICANT.

System

Welcome to the Forum, AnnGee!

I agree with Marc and Don.

1. Before you think he's covered by the ADA, go thru the usual ADA analysis: Does he have the medical condition of alcoholism, or just a bad habit? If he is indeed alcoholic, is his specific condition serious enough to be a "disability"?

Even if he's disabled, you still can hold him to the same standards as other ees, including firing him for being at work under the influence.

If he needs extended leave or intermittent leave for counseling, FMLA probably would cover it.

2. Last-chance agreement might be good.

3. Letting him drive a company vehicle is a baaaaaaaaaaaad idea. It's negligent, if not reckless. If he drives drunk and kills someone, your company could pay out millions of dollars in a lawsuit.

Here's the discussion "ADA and Alcoholism":
[url]http://www.hrhero.com/employersforum/DCForumID14/5489.html[/url]

Here's an article I wrote for the HR Hero Line e-zine based on that Forum discussion, says pretty much the same thing:
[url]http://www.hrhero.com/hl/101504.shtml#feature[/url]

Good luck!

James Sokolowski
HRhero.com

Don D

I have a minor point of disagreement with James' suggestion. If your company was in the middle of disciplining this individual or investigating his violative behavior, the company has absolutely no obligation or responsibility to go through any ADA analysis simply because he then said he has a problem and needs help. Sorry Charlie, the red flag is up and the gate is down once you test positive.

It's one thing to go an extra mile to offer assistance to an employee in need. It's quite another to say/feel/suggest that we are OBLIGATED to do so under the circumstances presented in the question.

Otherwise, I suppose I agree with James.

AnnGee

Thank you all for your response, it has been very helpful. Angie.

System

You're right, Don, the ADA wouldn't stop the disciplinary process. So I guess the interactive process doesn't matter unless he keeps his job. If you fire him, the only accommodation he gets is a pillow on the sidewalk when you throw him out the door. x}>

James Sokolowski
HRhero.com