When alcohol abuse enters the workplace

Football powerhouse USC fired its head football coach, Steve Sarkisian, in October after it was widely reported that he had been under the influence of alcohol during several team events. His termination provides a lesson for any employer wondering how it should handle the sometimes-touchy situation involving possible alcohol abuse by an employee. What should an employer do if it believes one of its employees is under the influence at work? It may come as a surprise that the employer does not have the unfettered right to treat employees with alcohol problems in any manner it sees fit. That's because the federal Americans with Disabilities Act (ADA) and Oregon's disability law consider alcoholism a protected disability. In other words, if an employer fires someone because it knows or suspects the person is an alcoholic, an ADA claim could be forthcoming. The good news is that some bright line rules exist for employers to follow in order to make sure they stay out of hot water in situations involving employee alcohol use. Here are the five things to know about employee alcohol abuse: 1. The ADA specifically says that alcoholics can be held to the same performance and conduct standards as all other employees The statute makes clear that a line can be drawn in the sand. Even the decidedly pro-employee Equal Employment Opportunity Commission (EEOC) recognizes that poor job performance or unsatisfactory behavior such as absenteeism, tardiness, insubordination or on-the-job accidents related to an employee's alcoholism need not be tolerated if similar performance or conduct would not be acceptable for other employees. In guidance addressing how employers should apply performance and conduct standards to disabled employees, the EEOC says employers that consistently enforce their rules can do so even if an alcoholic employee claims that the reason for the rules violation was the result of drinking. However, those employers that maintain a lax attitude about certain rules but then cracks down when an alcoholic worker breaks those rules will face ADA liability. 2. Alcohol can always be prohibited from the workplace Maybe this seems like a no-brainer, but the ADA permits businesses to bar the use or possession of alcohol in the workplace. It doesn't matter if an employee claims that his or her alcoholism causes him or her to display bad judgment and bring the bottle to work; an employer can always lay down the law (consistently) in this regard. 3. A worker can be steered toward an Employee Assistance Program The EEOC provides employers with the option of referring an employee suspected of having a drinking problem to an EAP for assistance. This is certainly not required, and the agency clearly states that an employer can respond to a performance or conduct issue by walking down the disciplinary path instead. However, if an employer wants to help its employee and believes that rehabilitation might be good for both parties, then the EAP route could be ideal. Some employers may be wary to take the first step in such a situation for fear that they might end up being found to have "regarded" the employee as disabled by making an EAP suggestion. However, once the ADA Amendments Act was passed in 2008, the bar to prove disability or "regarded as" disability became incredibly low. In other words, an employee will often be able to prove "disability" no matter an employer's actions, so this should not be the primary concern. As long as an employer can show through objective, documented information that the employee appeared to be under the influence of alcohol, and it is not acting solely based on speculation or innuendo, it's putting itself in the best possible position. Further, an employer could also refer the employee to an EAP without concluding why he or she is acting erratically; just be sure to document the thought process and actions. 4. A "last chance agreement" is a possibility Another similar option is requiring the employee to sign a last chance agreement once caught violating company policies. Again, the EEOC makes clear that this is not a requirement, but rather an option. Generally, under such an agreement an employer agrees not to terminate the worker in exchange for an employee's agreement to receive substance abuse treatment, refrain from further alcohol use, 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. Counsel can help draft an ADA-compliance last chance agreement. 5. An employee can be fired if he or she raises alcoholism for the first time in the face of impending termination As noted above, an employer can impose the same discipline that it would for any employee who fails to meet its standards or who violates a consistently-applied conduct rule. So even if the employee raises an unknown alcohol problem at time of termination, the employer can still proceed with the action if it would have been imposed on a nonalcoholic employee. However, if an employer intends to apply some lesser form of discipline, and the employee first raises alcoholism at that time, reasonable accommodations (after imposing the lesser form of discipline) should be considered. If the employee mentions the alcoholism but makes no overt request for accommodation, ask if the employee believes an accommodation would prevent further problems with performance or conduct. If the response is "yes," or if the employee raises it of his or her own accord during the disciplinary meeting, begin an "interactive process." This process will help determine if an accommodation is needed to correct the problem. The employer can ask the employee and his or her health care provider (through the employee) about the connection between the alcoholism and the performance or conduct problem. The employee's input can be sought as to what accommodations may be needed. A common reasonable accommodation in these scenarios is a modified work schedule to permit the employee to attend an on-going self-help program, but the ultimate choice rests with the employer so long as it believes the proposed accommodation is designed to succeed. ----- Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter @pdxLaborLawyer. Published: Mon, Nov 09, 2015