How to Deal with an Employee with a Drinking Problem (6/10)

Do you know how to respond to an employee whose drinking problem puts his job in jeopardy?  Find out the tough steps you should take to confront and resolve this problem.

What would you do if you suspected an employee had a drinking problem because his performance and appearance had deteriorated over the last several months?  Assume the tell-tale signs are there – the employee misses work using suspect excuses, comes to work impaired and smelling of alcohol, and even has been physically dirty and disheveled.  And, maybe the employee even has acknowledged “some” problem, but also insists that he has “cleaned himself up.”   How do you help him to get back on track?      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.  But, you also should be aware of potential issues under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).  Below is a five-step program guide to deal with alcohol impairment in the workplace. Five Steps to Address Alcohol Issues 1.     Start by addressing performance problems.   If the employee is having performance problems related to alcohol use, you should address these issues first.  Be specific about the performance problems you have observed.  For example, point out any attendance problems, dirty physical appearance, appearing impaired at work, smelling of alcohol, etc.  In addition, give the employee the opportunity to improve, but require immediate action on his part.  You should make clear to him that if he does not improve, he will be terminated under your normal disciplinary policies. 2.     If the employee admits to having an alcohol problem, give him the option to 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 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 the employer actually is 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) address his performance problems (see #1, above) and take disciplinary action for continued work rule violations.   3.     Explain potential FMLA and ADA protections to the employee.  To encourage the employee to seek treatment, you should explain his rights under the FMLA and the ADA.  Under regulations interpreting the FMLA, an employee’s alcoholism may constitute a serious health condition that entitles the employee to up to 12 weeks of 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 to seek treatment.        Similarly, the ADA generally protects alcoholics as disabled even if they are currently drinking.  So, while the ADA is not specifically a leave law, it may allow alcoholics to seek treatment as a reasonable accommodation under the ADA.  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.        Note, too, that not every employee who comes to work impaired by alcohol is an alcoholic protected by the ADA or FMLA, and these employees can be disciplined for violation of your performance and work rules.  But, if the employee’s performance seems consistently impaired by alcohol use, the likelihood that the individual is an alcoholic is much higher, and you should consider potential ADA and FMLA issues. 4.     Emphasize limits of FMLA and ADA protections.  The employee also should understand that while the ADA and FMLA protect alcoholics, these protections do not bar employers from fairly and consistently enforcing their alcohol and drug use policies.  So, if the employee refuses to seek treatment under the FMLA or ADA, you can proceed with disciplinary action if his performance does not improve.        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.  Just make sure that it is clear that any disciplinary action you are taking is not related to any possible disability or need for leave, but is directly related to the employee’s work rule violations.   5.     Discipline, and even terminate, the employee if performance does not improve.  If after the employee has been given an opportunity to improve or seek treatment and he still cannot conform to your performance requirements, you should take disciplinary action, up to termination if necessary.  As noted in #4, above, make sure to emphasize that the discipline or termination is the direct result of the employee’s failure to improve performance, and not related to alcoholism or even alcohol use unless the use is on-the-job.  Of course, it also is prudent to consult with your attorney prior to taking any adverse action to ensure compliance with the ADA and FMLA and to ensure consistent application of your policies.      There is no question that addressing alcohol-related performance problems in the workplace is tough.  But, if you ignore them, you are doing a disservice both to your employee and your organization by allowing continued impaired performance.  If you follow the five steps suggested above, you give your employee an opportunity to change his potentially destructive behavior and help ensure a safe and productive work environment.