By Josh Heggem, Pemberton Law; and Sonya Guggemos, MCIT Senior Staff Counsel for Risk Control
Date: April 2019
One of the more difficult human resources issues is an employee who may be struggling with chemical dependency. Sometimes an employee who struggles at work with issues such as work quality, timeliness, tardiness and absenteeism may also grapple with a personal issue like alcoholism or drug abuse.
How the employer learns about this issue can vary. Management may hear bits and pieces of information without any real sense of whether it is getting the full story.
Navigating all the legal obligations under the Americans with Disabilities Act (ADA) while simultaneously trying to support an employee in crisis can be difficult, confusing and frustrating.
Take the following example: A long-time employee suddenly starts showing up late for work every morning. Sometimes, the employee does not show up at all. The individual is also not following policies that require notifying the supervisor of absences. There are rumors that the employee’s personal life is out of control, and the individual is closing down local bars most nights.
After a while, the employee starts showing up to work with strange injuries—a broken finger, bandaged head, a black eye—and tells far-fetched stories about how they happened. But co-workers hear “through the grapevine” that the employee actually got drunk and into a bar fight. Other employees begin reporting that they believe their co-worker smells strongly of alcohol each morning. The employee tells co-workers that the smell comes from strong breath mints he or she recently started using daily.
What should an employer do?
Chemical Dependency May Be a Disability Under ADA
Ignoring the problem is rarely the correct answer unless there are no observable work-related issues. If everything is going well during the workday, then this is purely a personal issue, and the employer should leave it alone.
Only addressing the suspected chemical abuse and not the performance issue is also not the answer. This could raise a claim of disability discrimination under the ADA should the employer need to discipline or terminate the employee.
Chemical dependency may be a disability under the ADA if it substantially limits a major life activity, the employee has a record of chemical dependency or the employee is regarded as being chemically dependent.*
An employee’s current illegal use of a controlled substance or drug is not protected by the ADA. An employee no longer abusing drugs may be eligible for ADA protections. In all cases, allowing for treatment and/or continued support for sobriety may be a reasonable accommodation under the ADA.
Remember ‘Regarded As’ Provision
The ADA not only protects employees who are actually disabled but also those who are regarded as being disabled. If an employer disciplines or terminates someone assuming that the work-related issues are based upon the rumors of the employee’s midnight escapades at the bar, the employer may be regarding the individual as an alcoholic and thus disabled.
Regarding someone as disabled, even if in fact he or she is not, may give rise to a discrimination claim. Therefore, the best course of action is for the employer to meet with the individual and focus the discussion on any observable work-performance issues, such as work quality, performance and attendance.
Management should address performance issues with the employee as it would with any other employee with the same performance issues. For example if other similarly situated employees are routinely 15 minutes late for work and no action is taken, it may be problematic to discipline this employee for tardiness because of suspected chemical use.
Performance Management System Provides Framework
Employers should use their performance management system to inform the employee of his or her work-related deficiencies, remind the individual of expectations and move on to discipline if the issues continue.
Depending on the specific issues at hand, this may mean starting with an oral warning, then a written warning and at some point an unpaid suspension. Ultimately, if the work-related issues are not corrected, termination might be appropriate.
Employers should focus on managing the employee’s performance issues, not the suspected chemical dependency. If the employee offers that his or her performance issues are due to alcoholism or other chemical dependency, proceed with caution and seek advice of an experienced labor and employment attorney early in this process.
This does not mean that performance issues should or must be ignored, but rather that additional considerations may need to be taken into account as the employer moves forward.
When an employee identifies alcohol or drug use as a factor in his or her performance, there may be an obligation under the ADA to engage in the interactive process and provide some type of reasonable accommodation to the employee.
Referring an employee to resources for evaluation and treatment may be appropriate. The MCIT Employee Assistance Program (EAP) is a risk management tool designed to provide employees of MCIT members and their dependents access to a qualified counselor to assist in resolving personal issues that may affect performance at work. This voluntary program provides short-term, no cost counseling services for personal issues including those related to chemical dependency, among others. The employer cannot mandate an employee use the EAP.
A chemically dependent employee may request leave to seek treatment, perhaps weeks or even months. Similarly, the employee may request a part-time or a flexible work schedule to accommodate outpatient treatment. Unpaid leave can be a reasonable accommodation under the ADA and under most circumstances should be granted for this purpose, absent an undue hardship.
An employer does not have to accommodate active drug use or alcohol use that violates workplace rules, such as an employee drinking on the job.
Balance Responsibilities to Employee and Workplace Safety, Policies
If an employee arrives at work smelling of alcohol or is otherwise believed to be under the influence of a chemical, the department head, human resources representative and/or county attorney or other legal counsel should be contacted prior to taking action.
If an employee operates a motor vehicle as a part of work duties, driving should be restricted until a plan to address the suspicion is developed.
There are laws regarding drug and alcohol testing in the workplace and data privacy that must be considered. If an employee is a Department of Transportation-regulated employee (where the job requires a CDL), those rules and regulations must also be taken into consideration. Violations of these laws and regulations may expose an entity to liability.
Furthermore, telling an employee to just go home and “sleep it off” may be problematic, particularly if the employee is impaired and will be driving home.
Although employers may be tempted to ignore any rumors of chemical dependency and proceed directly to termination for an employee’s attendance or work performance issues, this may be problematic, particularly if the employer would not treat an employee who is neither actually nor rumored to be chemically dependent this way.
Focus on Ways to Support Improvement
The goal of any performance management or disciplinary process should be to help the employee improve and succeed. Employers should approach the employee early to address work-related issues and ask him or her if there is anything management can do to help the individual meet expectations. This may be all the employee needs to seek assistance and turn things around.
In the event that the employee is unable to improve and succeed, the employer would have created a written record of the attempts to give the employee opportunities to correct his or her work-related issues. This will help a great deal to defend the entity in case of a discrimination claim.
There is no doubt that working with an employee who is struggling with chemical dependency can be frustrating, and it can be difficult to decide the best course of action that complies with the employer’s legal obligations. Completely ignoring observable work performance issues rarely solves the problem.
Instead, employers are most likely to find success and avoid expensive discrimination lawsuits by tackling performance issues head-on and working with the employee to give him or her the opportunity to improve. This may include needed accommodations or assistance, where appropriate, to help the individual get back on track and become a successful member of the team.