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Multiple Reports of Alcohol Use Led to Discharge
Court Focuses on Employer’s Policy, Extent of Complaints
Investigate Complaints, Act Swiftly
Are you worried you may violate the
Americans with Disabilities Act - ADA if you
terminate an employee who you suspect is under the
influence of alcohol at work? A court decision shows it is
possible to follow your policies without breaching the Americans
with Disabilities Act- ADA.
Most employers have
policies that
specifically prohibit employees from being under the
influence of
alcohol at work and allow for termination if violated. However, many
managers are reluctant to discharge employees under these policies
because they mistakenly think that they must have direct proof of
the alcohol use or that the Americans with Disabilities Act (ADA)
prevents them from enforcing the rule against employees who may be
alcoholics. A decision by the Seventh Circuit Court of
Appeals indicates that employers can enforce their policies and
explains the ADA’s protections. In Bekker v. Humana Health Plan,
Inc., 229 F.3d 662 (7th Cir. 2000), the court found
that the employer did not violate the ADA when it terminated a
doctor it had good reason to believe had violated its alcohol use
policy.
Multiple
Reports of Alcohol Use Led to Discharge
From 1990 to 1996, several patients
and employees complained that a doctor employed by Humana Health
Plan smelled of alcohol during the workday. Each time the doctor was
confronted with the allegations, she denied drinking alcohol at
work, and the employer did not find any concrete evidence. In 1996,
after another patient complained of smelling alcohol on the doctor,
the employer conducted an investigation into her alleged drinking.
Several nurses, patients, and doctors reported they had smelled
alcohol on the doctor on numerous occasions.
[Creating HR Policies or Employee Handbook?]
Based on these accounts, the
employer determined that even though it had sufficient reason to
terminate the doctor, it would allow her to continue employment if
she agreed to certain conditions, including attending a formal
recovery program and undergoing random tests for two years. The
doctor did not agree to the terms within the allotted time period
and was terminated. The termination letter stated that the doctor
was discharged because she did not agree to the conditions and
because the employer believed she was an alcoholic. The doctor sued,
claiming that the employer regarded her as disabled and
discriminated against her in violation of the Americans with
Disabilities Act - ADA.
Court Focuses on Employer’s Policy, Extent of Complaints
The Seventh Circuit’s decision
confirmed two key points. First, an employer may
terminate an
alcoholic who poses a direct threat that cannot be eliminated by
accommodation. Second, it may terminate an alcoholic who violates a
consistently enforced, nondiscriminatory alcohol use policy.
In addressing the issue of
accommodation, the Seventh Circuit agreed that the doctor was
disabled under the ADA since the employer clearly "regarded" her as
an alcoholic, as evident from its termination letter. (Under the
ADA, a person is considered disabled not only if she actually has a
disability, but also if she has a record of having a disability or
is regarded as having a disability.) However, to be entitled to the
protections of the ADA, the doctor also had to show that she was a
"qualified individual with a disability" by demonstrating that she
could perform her duties without posing a direct threat to the
health or safety of her patients.
The court determined there was
"ample evidence," including the numerous reports of her smelling of
alcohol at work, to show that the doctor was a direct threat to her
patients’ health or safety. The court then addressed whether the
threat could be reduced or eliminated by an accommodation. It
rejected the doctor’s proposed accommodation of daily alcohol
testing as both overly burdensome on the employer and ineffective
since it would not ensure that the doctor did not use alcohol after
the test. At the same time, the court noted that the employer’s
requirement that the doctor enter a recovery program could have been
a reasonable accommodation, but the doctor did not agree to it.
Thus, the court concluded the doctor was not a "qualified individual
with a disability" and, therefore, not protected by the
Americans with Disabilities Act - ADA.
The court also addressed the
employer’s application of its alcohol use policy. It pointed out
that the Americans with Disabilities Act - ADA allows employers to implement policies prohibiting the
use of alcohol in the workplace and to hold alcoholics to the same
standards of performance and behavior as it holds other employees.
The employer’s policy clearly prohibited employees from working
while under the influence of alcohol or drugs, and it stated that
employees may be terminated for violations. In addition, the
employer had sufficient evidence to believe that the doctor had been
under the influence of alcohol at work. Therefore, since the
employer would not tolerate that conduct from non-alcoholic
employees, the doctor’s
termination for violation of the policy did
not violate the ADA.
Investigate
Complaints, Act Swiftly
So how can you enforce prohibitions
against alcohol use in your workplace without violating the
Americans with Disabilities Act - ADA?
Here are three suggestions:
1. Implement a policy prohibiting
alcohol use. The policy
should address use at work and working while under the influence of
alcohol. Most employers include this language as part of a policy
covering both drugs and alcohol.
2. Enforce the policy on a
consistent basis.
Investigate all allegations of alcohol use and take action based on
your findings. As this court pointed out, you do not have to have
concrete evidence of its use, such as seeing the employee drink the
alcohol or a positive alcohol test. You only need a reasonable
belief, based on your objective investigation, that it is likely the
employee violated your policy.
3. Do not label an employee who
violates your alcohol use rule an alcoholic. If you do, you will complicate your
ability to take action because, as in this case, the employee will
be able to claim she is protected by the Americans with
Disabilities Act ADA since your label shows
you "regard" her as having a protected disability.
As a somewhat different approach,
consider requiring the employee to seek treatment as part of a "last
chance agreement." Typically, a last chance agreement requires the
successful completion of a rehabilitation program and improved job
performance as a condition of continued employment. This required
treatment option balances your need for a productive worker with the
recognition that the employee has a serious problem. Remember, you
do not have a legal obligation to offer leave for treatment to an
alcoholic who violates your work rules by drinking on the job.
However, a leave of absence may be an appropriate Americans with
Disabilities Act - ADA accommodation
for an alcoholic who has not violated your rules and wants time off
from work to seek treatment. Finally, whatever course you follow,
make sure you treat the employee in a consistent manner under your
policies to limit
Americans with Disabilities Act - ADA claims. |
Personnel
Policy Service, Inc.
