ADA and Alcohol Abuse
jakech
6 Posts
We have a employee we suspect of alcohol abuse. We found a bottle of vodka in the restroom which only reinforces our suspicions. I don't think ADA covers current abusers but wnated to float it out here to confirm. We don't really want to go down that road if we don't have to. This employee has already been off for 10 weeks due to a breakdown. We have a full release from her doctor but her performance is poor at best. Any input would be greatly appreciated.
Comments
Are you sure the bottle was her's? Did anyone see her with it? Has she exhibited signs of being impaired while at work? Do you have a policy covering use or possession of alcohol on company premises? Do you have an EAP? Does she have FML available?
If you address the performance issues, her termination may be less risky for you.
In answer to your questions:
Are you sure the bottle was her's? "NO" Did anyone see her with it? "NO even though she was the last one out before it was discovered." Has she exhibited signs of being impaired while at work? "YES, but attributes it to her medication." Do you have a policy covering use or possession of alcohol on company premises? "Yes we do, but really don't have the proof we need or really want because then we would have to make the offer of counseling." Do you have an EAP? "YES" Does she have FML available? "Only two weeks due to her 10 weeks off for the breakdown. We agree with you concerning the performance issue. We knew of problems prior to her breakdown so upon her return (with full release)we provided two weeks of re-training and this week she is being observed by her supervisor to note any deficiencies(and they are many).
Thanks again
Still, I agree with bsa that you should focus on her performance, and it sounds like you can build a solid case for termination.
James Sokolowski
Senior Editor
M. Lee Smith Publishers
The confusion I think comes about because alcoholism has been held to be a disability but there is no specific requirement that addresses rehabilitation. Some court rulings may have taken that aspect up, though. On the other hand, drug addiction is specifically declared not to be a disability if there is current use.
Section 104 of the ADA lumps illegal drug use and alcoholism together. But it only describes the use of alchol at the workplace that may be prohibited in addition to evaluating any employee's performance. It primarily deals with drugs and drug testing.
And then on top of that there is the Drug Free Workplace Act, which deals with drugs, for federal contractors and public agencies receiving federal funds. Since under DFWA an employer must have a policy to deal with controlled substances, many employers combine it with an existing alcohol prohibition policy or toss in alcohol as part of the DFWA policy statement. And there are some Federal-government-as-an-employer regulations addressing use of alcohol and illegal durgs on the job by a federal employee.