Employee Admits Alcohol Problem
MHarris
20 Posts
We have a Class A driver who confided to his supervisor that he had a drinking problem but that he was going to "beat it". He indicated that he has never had a drink at work but other employees often smell it on him when he sweats and his DT's are obvious to everyone. The supervisor discussed our alcohol and drug policy with him, etc. We do not have an EAP per se but I do provide resources to employees that come to me with issues such as these. To date, he has not specifically asked anyone for assistance.
My concern is that now that we know about his possible condition, what additional liability do we have with him being a driver - in the event he was involved in an accident, would that be considered negligent retention? And to complicate matters we could possibly have the ADA to deal with.
Can someone give me an idea of what our options/rights are as his employer?
Other issues unrelated to the alcohol may complicate matters but I will leave that until I get an idea of the direction of your responses.
Any input is appreciated.
Green HR Girl
My concern is that now that we know about his possible condition, what additional liability do we have with him being a driver - in the event he was involved in an accident, would that be considered negligent retention? And to complicate matters we could possibly have the ADA to deal with.
Can someone give me an idea of what our options/rights are as his employer?
Other issues unrelated to the alcohol may complicate matters but I will leave that until I get an idea of the direction of your responses.
Any input is appreciated.
Green HR Girl
Comments
This individual is a delivery driver for our wood truss manufacturing facility. We have a total of 200 + employees, 100 or so at that location. As for our drug and alcohol policy we have the standard prohibition against use while on duty. It states that we can test for alcohol or drugs at any time but that it must have the approval of two company officials. A positive test may result in disciplinary action, up to and including termination and so on. We are not an official drug free workplace.
So is the fact that he confided in his supervisor considered reasonable suspicion? And, if he tests negative, what's to say he won't take a drink tomorrow, in a month, or next year. That's what I'm getting at...how do we protect ourselves in such circumstances????
I was thinking ahead with the ADA and what might occur if we try to terminate this person. If someone is an alcoholic don't we have considerations as far as this is concerned? I guess I am a bit confused with this part of the issue. You can set me straight on this I am sure Don.
Reasonable suspicion when the suspicion is alcohol rarely works. If it's coming out of his pores, that means it's working it's way out of his system.
>So is the fact that he confided in his supervisor considered
>reasonable suspicion?
I don't think you could be faulted for sending somebody for a breath alcohol test if he tells his supervisor he has a drinking problem and his job is truck driver requiring a class A CDL.
And, if he tests negative, what's to say he
>won't take a drink tomorrow, in a month, or next year. That's what
>I'm getting at...how do we protect ourselves in such circumstances????
Nothing assures that he or anyone else won't drink tomorrow or the next day or today for that matter. All you can do is all you can do. Send him for a test and encourage him to take advantage of a program if he confirms to you that he does have a problem. I don't think you would be wrong to tell him that he is on notice that you are going to pull him in for a random as often as you want to with no notice, based on his admission that he has a problem and has not been treated. You are under no obligation to see to it that no employee takes a drink. All you are obligated to do is take reasonable precautions and enforce your drug/alcohol policy
>
>I was thinking ahead with the ADA and what might occur if we try to
>terminate this person. If someone is an alcoholic don't we have
>considerations as far as this is concerned?
Being an alcoholic does not grant one ADA protection. However, ADA protection does indeed extend to an employee or applicant who has successfully completed a treatment program, in that you cannot discriminate against them for that and must consider reasonable accommodation thereafter, such as extra lag time getting back from noon meetings or something like that.
I think counseling of the firmest order is appropriate at this juncture, including the "your ass is gone" speech for violations. He has already freely given enough information to identify a problem and put you on notice. You won't be violating any law or rights that I'm aware of if you follow up on his admission, including strong warning and suggestion for treatment and repeat testing. If you know a safety officer or HR Director at one of the larger OTR companies in your area, or even if you don't know them, give one a call and lay your scenario out and ask for their advice. Ask them what they would do. They deal with this routinely.
Thanks for your time......enjoy the weekend!
Manager should directly observe. Do not rely on rumor or 3rd party report.
Manager should have specific current observations concerning appearance, behavior, speech, actions or body odors.
Observations must be factual, readily explained or described.
Suspicion should be based on short term factors, not long termed poor performance alone.
If this person meets the above drive him to the test site and request DOT UA as stated above by Don.
Good luck,
Stuart
The concern is in your companies' lap, so take positive action and intercede whether he wants it or not! We wish you well, we have been there and done that with the resulting 18 wheeler accident, loss of the drivers's left arm, the destruction of the entire 18 wheeler, loss of the entire load of Market Hogs, and a current disability lawsuit, with "I told you people I had a drinking problem, and before I left the terminal the service manager ask me if I had been drinking because he smelled alcohol on my breath, and I said yea, before I got on the road to come over here"! A one hour drive and a two hour loading session, and a two minute conversation and a 1.28 level in the emergency room two hours after the accident, gives us the right to terminate for violation of company policy, and a wrongful discharge case because "he told us and we did nothing, he told us after we smelled alcohol, and we listen to his reasoning for the smell, and we did nothing". Thank goodness this happened before I became the HR. Good luck in your situation, may we all learn for your posting, thanks for the concern!
Pork
As I noted in the beginning, there are other issues that complicate the matter. Let me explain.
Prior to his admitting he had an alcohol problem, the ee had been on FMLA due to shoulder surgery (non-work related). I sent him notification as he neared the end of his 12-weeks that he must report for duty on such and such a date with a release from his doctor and a fitness for duty evaluation or we would consider him to have resigned his employment with us. In addition, he owes a considerable amount for his health and disability insurance premiums (notification of his responsibility and timelines had been given).
He was able to get a doctors release to work with restrictions and fitness for duty eval. echoed the same. That was our first dilemma - to allow him to come back to work to a job he could not fully do (and risk a possible W/C claim) or terminate him and take our chances with some sort of FMLA violation. Legal counsel thought it best that we make an effort to accomodate his restrictions. If the accomodation did not work out we were given the OK of sorts to terminate him and at least we could show that we made a good faith effort.
You know the rest. We brought him back and made accomodations for his restrictions. That is when he admitted to the supervisor that he had alcohol issues.
Fast forward to the present...............
EE worked Friday and had supervisor and another employee ride with him on his runs - all seemed well. He left Monday mid-day without telling his supervisor but did tell another employee his shoulder was bothering him. He called yesterday afternoon and confided in the supervisor that he had the shakes so badly that he could not do his job. Apparently being off on FMLA made whatever alcohol problem he had worse.
This ee has been a good employee and we are willing to provide treatment resources, etc. I do have the feeling however that should times get tight for him that he might look for some way to sue. He seems to have a bit of the entitlement mentality and he has had 12-weeks to sit at home in front of the TV listening to ads of legal services reinforcing the issue.
I need some help to understand what our obligations are once we provide some treatment resources. I will definately contact our lawyer but I find that the forum provides info that is just as helpful and provides insight into issues I may not have considered.
-Do I now have to worry about ADA?
-Can I ask for documentation that he has been through treatment? Timeline?
-In what circumstances CAN we terminate now should he not accept the treatment?
-Non-payment of insurance????????
Allrighty then........any easy answers to that?
Regarding the ADA issue, he needs to be CERTIFIED as an alcoholic before being covered under ADA. Once that happens, you need to determine if allowing him off work to attend treatment would cause undue hardship (something very difficult to prove). If not, I would recommed allowing him the time off with the following "strings":
1) Do you have an EAP? If so, mandate that he first go through the EAP counselor to determine what type of treatment would be most beneficial. If you do not, whatever counselor he chooses to see should make this recommendation.
2) Put together a written "last chance" agreement that states he must complete any and all recommended treatment plans as well as be subject to random testing (in addition to any random testing you may already have in place) for up to a period of one year. Make him provide written verification that he has completed treatment before you allow him back on the road.
Because this person is a truck driver there may be additional things you can do to ensure he is not reporting to work "under the influence" but as I am not in that industry, I can only guess what they may be.
Regarding your question about termination, now that he has come to you and stated that he has a problem, it is up to him to get medical documentation to back this up. Once he has, you have some decisions to make regarding reasonable accomodations.