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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Confronting Employee Drinking Problem Q&A
October 29, 2007, Volume 9, No. 44
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Confronting Employee Drinking Problem Q&A
Do you know how to deal with an employee whose drinking problem puts
his job in jeopardy? Find out the tough steps you should take to
confront
and resolve this problem. |
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THIS WEEK'S E-TIP: Confronting Employee Drinking Problem Q&A
Q: We have an employee with a drinking problem whose
performance and appearance have deteriorated over the last
several
months. He has missed work, has come to work impaired and
smelling of
alcohol, and has been physically dirty and disheveled. We have
confronted him and while he has acknowledged "some" problem, he
also
insists that he has "cleaned himself up." We want to help him
get back
on track -- can we require him to go to alcohol rehabilitation.
A: Your best approach likely is to use your normal
performance
and disciplinary policies to deal with an employee you suspect
of
violating your alcohol-related work rules or whose performance
seems
impaired. (Download
a free model Drugs, Narcotics, and Alcohol policy
with HR best practices and legal documentation.)
You should continue your
discussions with the employee about his
behavior
and performance
(dirty physical appearance, appearing impaired
at work,
smelling of alcohol,
etc.) and to give him a choice to either
improve
immediately or to seek treatment.
You should make clear to him
that,
if he does not improve, he will be terminated.
Or, he can seek
treatment
under a last chance agreement.
Many employers offer substance abusers a "last chance" to
rehabilitate
themselves through an approved treatment program. Typically, the
last
chance agreement requires both the employee's successful
completion
of the rehabilitation program and improved job performance as a
condition of continued employment. An offer of treatment
balances your
need for a productive worker with the recognition that the
employee has
a serious problem.
However, last chance agreements should be used only when the
employee has admitted a substance abuse problem, the substance
abuse is the cause of the performance problems, and you actually
are
prepared to terminate a worker who fails to live up to its
terms. So, if this
employee is not willing to acknowledge his problem, you may not
be able
to force him to seek treatment. But, you can (and should) take
disciplinary action for his continued work rule violations. (Download
a
free model Behavior of Employees policy with HR best practices
and
legal documentation)
To encourage the employee to seek treatment, you may want to
explain
his rights under the Family and Medical Leave Act (FMLA) and the
Americans with Disabilities Act (ADA). Under regulations
interpreting the
FMLA, an employee's alcoholism or drug addiction may constitute
a
serious health condition that entitles him to FMLA leave if: (1)
the
employee receives inpatient care; or (2) the employee's
substance
abuse results in a period of incapacity of more than three
consecutive
calendar days and continuing treatment by a health care
provider. In
those cases, FMLA leave may be taken for treatment of the
employee's
substance abuse. So, if he is eligible for FMLA leave, he may be
able to
take a job-protected FMLA leave.
Similarly, the ADA also allows alcoholics to seek treatment as
an
accommodation under the ADA. Thus, employees of covered
employers
also may be entitled to a leave of absence for treatment of
substance
abuse as a form of reasonable accommodation. For example,
providing
unpaid leave or a modified work schedule to enable an alcoholic
or
recovering drug addict to attend a rehabilitation program might
be a
reasonable accommodation required by the ADA.
If the employee refuses treatment, though, you can proceed with
disciplinary action if his performance does not improve.
Although the
ADA and FMLA protect alcoholics, these protections do not bar
employers from fairly and consistently enforcing their alcohol
and drug
use policies. Furthermore, the ADA does not prohibit you from
disciplining and even terminating alcoholics who cannot meet
required
performance and conduct standards, including attendance
requirements,
even if the unsatisfactory performance is related to alcoholism.
(Download
a free model Attendance and Punctuality policy with HR best
practices and legal documentation.)
Just make sure that it is clear that any
disciplinary action you
are taking
is not because of any disability, but is
directly related to the
employee's work rule violations.
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^^^^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information about last chance agreements in Drugs,
Narcotics, and Alcohol, Chapter 809, note 4, and about the ADA and
FMLA protection of alcoholics in note 15.
Not a subscriber? If you would like to order one of our policy
chapters,
go to:
http://www.hrpolicyanswers.com.
If you have any questions, please call us at 1-800-437-3735. We'll
be
happy to help you. |
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Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
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