The Law: Can you fire employees with a drinking problem?

Imagine the CEO of a well known corporation attending a crucial board meeting while intoxicated. This conduct could jeopardize the company’s reputation and financial stability. Consequently, the company’s board of directors might decide to terminate the executive’s employment to protect the company’s interests and uphold its professional image.

While alcohol use disorder, formerly known as alcoholism, is a disability when someone can no longer do major life activities because of long-term, heavy alcohol use, that does not mean that an employer has to put up with an employee’s drinking.

The U.S. Supreme Court has clearly stated that an individualized inquiry will be conducted to determine whether an alcohol-related or other impairment substantially limits a major life activity.

A Minnesota court stated that it would analyze alcohol use disorder on a case-by-case basis and noted that the plaintiff had not presented evidence that his alcohol use disorder affected a major life activity.

An employer still can ban alcohol in the workplace or at company events. An employer still can require that employees not be under the influence of alcohol in the workplace.

The Americans with Disabilities Act as amended specifically provides an employer may require an employee who is an alcoholic to meet the same standards of performance and behaviors as other employees.

Further, an employer does not have to tolerate poor job performance or unsatisfactory behavior, such as absenteeism, tardiness, insubordination or on-the-job accidents, if similar conduct and performance would not be acceptable for other employees.

Accommodation

An employer, however, may want to retain such an employee if they can modify his or her behavior. If the employer can correct the employee’s behavior, the law considers granting an employee appropriate leave to go through alcohol rehabilitation a reasonable accommodation.

Although time-consuming and costly, rehabilitation may be in both parties’ best interests.

Finally, employers must be aware that, depending on the situation, they may not have a choice and may have to proceed with providing a reasonable accommodation, whether that’s treatment, an employee assistance program or something else.

An employee whose poor performance or conduct is attributable to alcohol use disorder may be entitled to a reasonable accommodation. If the employee only mentions the alcohol use disorder, but makes no request for accommodation, the employer may ask if the employee believes an accommodation would prevent further problems with performance or conduct.

If the employee requests an accommodation, the employer should begin an “interactive process” (basically a discussion) to determine if an accommodation is possible to correct the problem. The employer should seek input from the employee on what accommodations may be needed and also may offer its own requirements.

In addition to those discussed above, another reasonable accommodation may include a modified work schedule to permit the employee to attend an ongoing self-help program. The Family Medical Leave Act may have to be considered as part of this process, as it permits employees a leave when their health care providers certify a need for time off to undergo alcohol treatment.

Misconduct

Finally, courts have routinely held that employees cannot blame misconduct on alcohol use disorder.

A California court held it was not discriminatory to fire an employee because he was jailed after his third arrest for drunken driving. The court found that the termination was based on misconduct stemming from a disability, not the disability itself.

While an employee’s decision to drink is that employee’s personal business, when the use or abuse of alcohol interferes with the employee’s ability to perform his or her job duties, an employer is wise to intervene within the limits of the law.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com