How does the law factor in?
Federal and state laws dictate at what point an employer may terminate an employee with alcoholism. Any employer confronting this issue should consult an experienced attorney before taking any action.
Two primary sets of laws come into play when discussing possible workplace protections for a worker with alcoholism: (1) the Americans with Disabilities Act and (2) the Family Medical Leave Act. These federal laws, which might protect a worker with alcoholism from being fired, can conflict with the at-will doctrine that allows an employer to terminate an employee for virtually any reason. An employer must consider the circumstances of the employee and these two laws that can preclude an at-will termination.
The ADA requires that an employer give reasonable accommodation to an employee who can demonstrate that he or she is substantially limited in a major life activity. If an employee can show that his or her alcoholism prevents him or her from conducting the tasks necessary to employment, then that employee may be due an accommodation so he or she can rehabilitate from the condition and keep his or her job. The ADA considers granting an employee appropriate leave to go through alcohol rehabilitation a sufficient and reasonable accommodation, and does not require that an employer tolerate relapse or consistent refusal to obtain help when given the appropriate chance. If an employer offers appropriate accommodation to an employee with alcoholism, and the problems with the employee’s alcohol abuse and resulting performance persist, then an employer can rightfully terminate the employee.
The FMLA does not permit an employer to terminate an employee for extended absences to obtain treatment for alcoholism. If an employee is attempting to access professional help to address the disease, an employer cannot hold the absence against the employee. The ADA and FMLA provide this level of leniency in part to encourage individuals who are suffering from alcoholism to seek the treatment they need without worrying about being fired.
An employee may also take FMLA leave to care for a covered family member who is receiving treatment for alcoholism, assuming that FMLA’s standards for a serious health condition are met. However, absences due to an employee’s abuse of alcohol, rather than for treatment, do not qualify for FMLA leave.
Additional protections for an employee with alcoholism might arise under an employer’s own personnel policies. Frequently, there are employee assistance policies that encourage employees to come forward with confidential requests for help that an employer should be aware of prior to terminating an employee.
Neither federal nor state law protects employees who abuse alcohol while at work, or whose alcohol abuse prevents them from performing any part of their job. If an employee abuses alcohol while on duty, or has some necessary license or authorization (such as a driver’s license) revoked due to his or her drinking, then an employer may terminate the employee without the accommodations required by law.
While law and public policy encourage an environment in which people with alcohol disorders are able to seek the help they need without concern over losing their jobs, there is no requirement that an employer tolerate alcoholism while an employee is on duty.
What about other substances?
As you know, people can be addicted to substances besides alcohol that could negatively affect their lives and performance at work. Individuals currently engaging in the illegal use of drugs are not “individuals with a disability” when the employer acts on the basis of such use. “Currently” means that the illegal use of drugs occurred recently enough to justify the employer’s reasonable belief that involvement with drugs is an ongoing problem. A “former” drug user, or an individual who had a drug problem but is no longer using drugs illegally, may be protected provided he or she has completed or is participating in a supervised rehabilitation program.
Although time consuming and potentially costly, the interests of the employer and the employee with alcoholism are best served by helping the employee get treatment. If the employee refuses or fails to take ownership of the issue, then the employer may be forced to consider terminating the alcoholic’s employment. Before taking any action, it would be wise to consult an experienced employment law attorney.
A training program called Mental Health First Aid, offered across the U.S., offers practical insights for how to help a colleague, friend, or family member with an alcohol or other substance use disorder. Learn more and find a course in your area at http://www.mentalhealthfirstaid.org/cs/take-a-course/what-you-learn.