Who doesn’t like a drink or two after work?

But what happens when you, as the employer, suspect that one of your employees has a drug or alcohol abuse problem, but you’re not sure because the employee sometimes just appears hung over in the morning?

Should you:

  1. a) offer counseling or rehab;
  2. b) fire that lush;
  3. c) consult with an employment attorney because maybe alcoholism is a disability under the Americans with Disabilities Act (“ADA”);
  4. d) all of the above.

“C!” The answer is “C!”   But you can offer counseling or treatment.

Alcoholism is considered a disability under the ADA. Yes, you can offer an employee rehabilitation and counseling or a modified work schedule as a reasonable accommodation, if the employee can perform the essential functions of the job (I blogged about this here and here). It is not a legal requirement to offer rehab or counseling.

You can also offer the employee FMLA leave for a treatment program.

If your employee does not request an accommodation, which many won’t because they fear they will be fired, the employer may ask if the employee believes an accommodation would prevent problems with performance or conduct.  If the employee requests an accommodation, the employer should begin an “interactive process” to determine if an accommodation is needed to correct the problem.

This discussion may include questions about the connection between the alcoholism and the performance or conduct problem. The employer should seek input from the employee on what accommodations may be needed and also may offer its own suggestions.

Possible reasonable accommodations may include a modified work schedule to permit the employee to attend an on-going self-help program.

While the employee may be entitled to a reasonable accommodation, an employee’s alcoholism does not shield her from the consequences of poor performance or conduct (e.g., tardiness, excessive absenteeism, insubordination) that may result from being an alcoholic. This need not be tolerated if similar performance would not be acceptable for other employees.

Employers may hold the alcoholic employee to the performance standards applicable to their job and require that employees may not be under the influence of alcohol in the workplace. You may discipline or terminate the employee if the use of alcohol adversely affects job performance or conduct. For example, you need not excuse persistent tardiness due an employee’s continual hangovers. Use progressive discipline to deal with the issue (even if that leads to termination) as you would any other employee. As with other disability issues, you should thoroughly document all conversations with the employee and any discipline meted out.

What about a “last chance agreement?”

An employer may choose, but is not required by the ADA, to offer a “firm choice” or “last chance agreement” to an employee who otherwise could be terminated for poor performance or misconduct that results from alcoholism or drug addiction. Generally, under such an agreement an employer agrees not to terminate the employee in exchange for the employee’s agreement to undertake substance abuse treatment, refrain from further use of alcohol, and avoid further workplace problems. A violation of such an agreement usually warrants termination because the employee failed to meet the conditions for continued employment.

So what can you do?

What if your employee insists she has no problem? (Yeah, this never happens. Wink wink.)

This is where management training comes in. Sit down with HR and the employee. Be specific about the issues observed and explain the consequences of any misconduct or poor performance due to violation of the “no-alcohol” policy, which you should already have, natch. Unless the employee admits she has an alcohol problem or there is evidence of on-duty impairment, the supervisor should be careful not to offer any opinion that the employee may have a problem with alcohol.

If the employee does not admit to a problem, you can refer her to the employee assistance program, if you have one, and/or explain that failure to correct any deficiencies may result in disciplinary or other action.

If your employee denies the existence of a problem, the supervisor should continue to document poor performance or misconduct and continue to hold the employee accountable for his/her performance and conduct.