Termination Appropriate/Legal?
bragaw
36 Posts
I posted on July 17, 2009 about the same ee. After many months of trying to get a diagnosis for this ee's medical condition it turns out he has a serious drinking problem. We suspected this for some time but were unable to confirm--no obvious smell of alcohol and ee had reasons (excuses) for condition--blood pressure medication, neurological problems etc.
After his last episode, we sent the ee home until he received a note from his doctor. Several days later he went to his doctor who tested him for alcohol. The ee was 3 times over the limit. The doctor obviously would not give the ee a note. The next day the ee visits his doctor and admits he has a drinking problem. We do not have an EAP program.
The company has expended a significant amount of time (several employees including the HR Manager, Safety Manager and the ee's manager over the course of several months), trying to get to the bottom of this ee's medical condition. Evidently, he has not been truthful on the numerous occasions when he has had an episode and we have asked him specifically if he has been drinking. We never had sufficient confirmation until his doctor informed us (the ee signed a waiver), about his drinking problem.
WE WOULD LIKE TO CALL THE EMPLOYEE IN AND ASK HIM WHETHER HE WAS DRUNK ON THE DOCUMENTED OCASSIONS WHEN HE HAD AN EPISODE. IF HE ADMITS (CONFIRMS), THAT HE WAS DRUNK ON THOSE OCASSIONS, WE WOULD LIKE TO TERMINATE HIM FOR BEING UNTRUTHFUL AND FOR KNOWINGLY WASTING COMPANY RESOURCES IN THE PROCESS. CAN WE DO THIS AND NOT VIOLATE THE ADA OR ANY OTHER APPLICABLE REGULATIONS?
After his last episode, we sent the ee home until he received a note from his doctor. Several days later he went to his doctor who tested him for alcohol. The ee was 3 times over the limit. The doctor obviously would not give the ee a note. The next day the ee visits his doctor and admits he has a drinking problem. We do not have an EAP program.
The company has expended a significant amount of time (several employees including the HR Manager, Safety Manager and the ee's manager over the course of several months), trying to get to the bottom of this ee's medical condition. Evidently, he has not been truthful on the numerous occasions when he has had an episode and we have asked him specifically if he has been drinking. We never had sufficient confirmation until his doctor informed us (the ee signed a waiver), about his drinking problem.
WE WOULD LIKE TO CALL THE EMPLOYEE IN AND ASK HIM WHETHER HE WAS DRUNK ON THE DOCUMENTED OCASSIONS WHEN HE HAD AN EPISODE. IF HE ADMITS (CONFIRMS), THAT HE WAS DRUNK ON THOSE OCASSIONS, WE WOULD LIKE TO TERMINATE HIM FOR BEING UNTRUTHFUL AND FOR KNOWINGLY WASTING COMPANY RESOURCES IN THE PROCESS. CAN WE DO THIS AND NOT VIOLATE THE ADA OR ANY OTHER APPLICABLE REGULATIONS?
Comments
Points to consider...(i) if the EE is in a recovery program at this point, he is most likely protected under ADA, and if so, (ii) denying / making excuses, regarding his drinking could be considered symptoms of the disease that the EE is attempting to recover from, and therefore may be protected from discipline.
Yes, that is what I am wondering. Is being untruthful/lying a protected symptom of a protected disability? And if yes, is such symptom protected from the time he is in a recovery program or does it "grandfather back" to all of the times that he was pointedly asked if he had been drinking and he lied and said no?
Again, if he admits that he was lying on those occasions, we would like to terminate based on his lies and waste of significant company resources.
Bragaw
In the absence of a similar policy, I agree you should consult a labor attorney - you don't want to run afoul of the ADA. In the meantime, I would be googling "ADA Alcoholism" and seeing what comes up in the searches.
We have a policy of immediate termination if you are caught under the influence of alcohol.
We would therefore like to terminate based on his anticipated admission that he was under the influence on numerous past occasions, his knowing misdirected statements about his having legitimate medical reasons for his symptoms and the significant amount of company resources expended on determining the cause of his symptoms.
Bottom line - you have no PROOF that he was under the influence and even trying to get him to admit, at this point, is useless and in all likelihood will come back and bite you.
Imagine this....
EE signs some type of statement that he was under the influence at work, you have no proof that he was, and he turns around, hires an attorney claiming you teminated him AFTER you found out that he had an ADA covered condition and you "made" him sign this statement. I see you paying $$$ to this EE for something that could have been avoided.
Suggestion...
Talk to him about his problem and, based on this information provide him with a "last chance agreement" which states that he is required to attend therapy as the therapist requires and make him be subject to random drug/alcohol tests for a period of one year. This way, if he does end up terminated, it will be based on solid fact!! We have done this numerous times in the past and, sorry to say, nobody has ever completed the one year period but ALL were terminated with solid proof of drug/alcohol use and NONE were grieved by the union. In fact, NONE of them even received UI!!!
Very good analysis.
Would you agree that a lie told by alcoholic employee to his employer would not be protected under the ADA any more than a non ADA covered employee who told the same lie?
Bragaw