“I have an employee that was witnessed using alcohol during working hours. He was counseled approximately two weeks ago and advised that this was unacceptable behavior that could result in termination. Behavior improved for a few weeks, but now there is reasonable suspicion this employee is drinking alcohol again on the job. A decision to terminate might be forthcoming; however, before such decision is made, we’re requesting support on the proper way to handle this situation. We do have a Drug Free Workplace Policy and have the ability to send the employee for testing.”
Answer: The ADA specifically provides that an employer may prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol. The Act permits employers to ensure that the workplace is free from the use of alcohol and does not interfere with employers’ programs to combat the use of alcohol. The general rule is that you can fire an employee for active drug or alcohol use on the job. While current drinking is not protected activity, alcoholism is, and it sounds to me as if this worker might be an alcoholic. Most people won’t put their job at risk once warned to stop…unless they can’t. Here’s the JAN website info on this: http://askjan.org/media/alcohol.html.
Does an employer have to allow use of alcohol at work as an accommodation?
No. The ADA specifically provides that an employer may prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol. The Act permits employers to ensure that the workplace is free from the use of alcohol and does not interfere with employers’ programs to combat the use of alcohol (EEOC, 1992).
Are tests for alcohol use considered medical tests under ADA?
Yes. Blood, urine, and breath analyses to check for alcohol use are considered medical exams, and thus subject to ADA limitations. According to the Equal Employment Opportunity Commission (EEOC), an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity (EEOC, 2000).
If you reasonably believe that an employee is intoxicated on the job, you can and should have someone drive them to be tested. There’s really only one accommodation for alcoholism- stop drinking. Giving an alcoholic employee time to get their act together is one example of a possible accommodation. If you haven’t had this conversation yet, do so when the person is sober. If the employee has causes no harm to this point, termination for cause, might be a risky step without first considering the accommodation dialogue. Many companies have been sued for doing so. If the employee fails to sign up for and complete a detoxification program, you can then fire them. The ADA does not require that you tolerate a relapse or refusal to obtain help when given the appropriate accommodation.
Finally, if the employee has been a good worker and a good person, work with them. Maybe they’re going through a tough time – we all do now and then. However, if the employee is recalcitrant, belligerent or denies having a problem when you talk with them, then termination will be the best solution.