DWI's and the ADA

MNHRPRO

[font size="1" color="#FF0000"]LAST EDITED ON 03-19-08 AT 10:15AM (CST)[/font][br][br]We have an employee who had a DWI (driving while intoxicated) offense in early December 2007. This employee had been flexing his schedule for several months prior to this in order to attend weekly counseling sessions and we counted that as FMLA leave. The employee, upon receiving the DWI, immediately went into in-patient chemical dependency treatment. In those instances, our disability insurance covers the leave and we counted it as FMLA leave. At the outset of the disability leave, the employee told us that he may have some jail time because this was a second offense but he didn't know for sure. At that time, the manager voiced his frustration because this employee is not our finest and I told himwe would accommodate 3 days of jail time. The employee completed his treatment the end of December and returned to work. Since then, he has been continuing to attend counseling sessions by flexing his time. We have now found out that the employee will have jail time (up to 10 days) but it may be work release. He will find out next week how much and what kind.

My question is - do you think there is any accommodation we would be required to make for this? My understanding of the ADA is that if an employee has an addiction but is seeking treatment, counseling, etc. to overcome the addiction, we are required to make reasonable accommodations as long as there is no undue hardship. However, would that apply to jail time? I don't think it would but wanted to check. the manager just wants to let him go as we have had some other issues with inappopriate comments he has made to female employees (we dealt with that and he seems to have understood why it was wrong and committed to improving) and he just has a past of being a so-so employee. I think part of that was his addiction "talking" and I can see him trying but I also don't have to work with him every day like this manager and his other employees do.

Thanks for your help! Sometimes it's good to get another "pair of eyes" to look at things as it's easy to miss something.

Nevada HR

My understanding is that alcoholism is only protected under ADA if the employee is abstaining. Relapses (or the fallout) are not covered.

NeedCoffee

Ditto to Nevada HR - only alcoholics that are actively in recovery are covered, drunks are not. Furthermore, make sure that you are separating the FMLA and ADA - yes, they interact, but sometimes what may qualify as a disability under ADA does NOT qualify the EE for FML leave.

To answer your general question, no, I do not believe jail time is an accommodation.

stilldazed

You are not required to make an accomodation. You are only required to consider whether an accomodation that employee asks for is reasonable and then act according to your assessment. Your worker must be asking for you to accomodate the jail time. What he is really asking you to do is accomodate the 10-day absence.

I would first confirm that he is in active rehabilitation. If he is, any absence associated with the rehab should be addressed. The absence for incarceration is different. It is not for active treatment, so I don't think you have a duty. You may have a deeply compassionate culture that encourages your organization to allow the absence, but it will not be ADA, even if the worker is 'recoverying' and disabie by ADA definition.

I would also suggest that someone should help the manager refocus on the worker's performance and conduct in the workplace. If there has been a performance issue all along and it is not documented, shame on the manager for not taking care of the paperwork side of managing this employee. If there is documentation, stick with the documentation. If your company decides that there is ADA to consider and the worker has an unreasonable attendance history (minus the ADA stuff), act accordingly within your policy. Ten days can be a long time for some positions that are critical and have no back up. Other positions lend themselves to 10-day vacations without disrupting things too badly.

best wishes.

davids

Let's remember that an accommodation is to enable the employee to perform the essential functions of his/her job. Time off for treatment may be a reasonable accommodation. Time off for jail is not. The jail time is for the DWI, not part of treatment.