|
 According
to The Other Bar, more than 20 million Americans suffer from alcohol
or drug dependency. Sadly, it is generally accepted that the
prevalence of chemical dependency within the legal profession is
higher than among the general population.
It is well-documented that as many as 50 to 70
percent of lawyers who are respondents before bar disciplinary
committees are chemically dependent and adversely affect their firms,
workplaces and clients.
Alcoholism in the workplace, whether in law or
other businesses, presents many legal and human resource management
issues. Federal and California state disability and leave laws can
greatly complicate an already difficult situation.
What is alcoholism?
Alcoholism is a genetic and progressively
debilitating illness. Statistically, it affects more men than women,
and usually surfaces between the ages of 20 and 40. Common symptoms of
alcoholism in the workplace include bloodshot eyes, bloated or flushed
face, hand tremors, irritability in the morning, long lunches, mood
swings, absenteeism and chronic lateness.
According to the National Clearinghouse for
Alcohol and Drug Information (NCADI), alcohol and drug users:
1. are far less productive;
2. use three times as many sick days;
3. are more likely to injure themselves or
someone else; and
4. are five times more likely to file workers'
compensation claims.
Alcoholism as a disability
The Americans with Disabilities Act (ADA), which
applies to employers with 15 or more employees, and the California
Fair Employment and Housing Act (FEHA), which applies to employers
with five or more employees, both consider alcoholism a protected
disability.
The ADA defines a covered disability in three
ways. Specifically, an employee has a covered disability if the
individual:
1. "has a physical or mental impairment that
substantially limits one or more major life activities of such
individual; or
2. has a record of such an impairment, or
3. [is] regarded as having such an impairment."
An individual must have either a physical or
mental impairment to be disabled under the ADA's first definition of
disability. While the ADA does not further define these terms, the
Equal Employment Opportunity Commission's (EEOC) ADA regulations
implementing Title I and the ADA's legislative history, two
significant sources of guidance, define physical and mental
impairment.
Specific disorders which are physical or mental
impairments under the first definition of a covered disability
include: orthopedic, visual or speech impairments; HIV infection
(AIDS); cancer; alcoholism; diabetes; and emotional illness.
Rehabilitation Act coverage
Federal employers, federal contractors and
recipients of federal funding, governed by §§501, 503 and 504 of the
Rehabilitation Act 29 USCA §708(8)(C)(v), also consider alcoholism a
covered disability, unless the employee's current use of alcohol
prevents the employee from performing the duties of the job or the
employee is a direct threat to the property or safety of others.
A covered FMLA illness
An employee qualifies for Family Medical Leave
Act (FMLA) leave if he or she has a "serious health condition that
makes the employee unable to perform the functions of the position of
such employee." 29 USCA §2612(a)(1)(D). Alcoholics who have
undergone treatment by a health care provider are generally deemed to
have a serious health condition under the FMLA.
Alcoholism in the hiring process
Prior to extending a job offer, the EEOC and the
California Fair Employment and Housing Commis-sion have taken the
position that testing for alcohol is prohibited in a pre-offer medical
exam. Although an employer can ask a job applicant whether he or she
drinks alcohol, the employer cannot ask if the applicant is an
alcoholic. After a conditional job offer is made, the employer can ask
the applicant about past or present alcohol use and possibly require
testing.
At work
Under the ADA and California state law, an
employer should hold an alcoholic employee to the same standards for
job performance and behavior that it sets for other employees, "even
if any unsatisfactory performance or behavior is related to the
. . . alcoholism of such employee." 42 USCA §1211(c)(4)
However, managers and supervisors are not diagnosticians; they should
concentrate on work performance.
Employees who abuse alcohol often exhibit the
following poor work performance indicators:
increased mistakes, errors in judgment and a sudden inability to
fulfill complex assignments or meet deadlines;
increased absenteeism or tardiness, excessive sick leave and frequent
early departures, and patterns of absenteeism (Mondays, Fridays, day
before or after holidays);
extended coffee breaks or excessive time on the phone;
irritability, moodiness, arguing with co-workers or insubordination
toward supervisors;
complaints from customers, clients and co-workers regarding rude or
inappropriate attitude and work quality of the employee;
drowsiness, slurred speech, clumsiness, shaky hands and cold, sweaty
palms;
smell of alcohol on breath;
poor personal hygiene;
violent, erratic behavior, impatience and depression;
extremely emotional behavior, excessive talking, suspicious attitude
toward others.
Discipline and discharge
If an employee is functioning the same as
everyone else in his or her essential job functions, an employer
cannot discharge the employee simply for being an alcoholic. Employers
should have clear standards and job descriptions as well as alcohol
and drug use policies.
If an employee's performance is suffering
apparently due to alcohol abuse, the employee's supervisor should
first meet with the employee, outline performance problems
and try to find the cause of such problems.
The supervisor should present the assistance
offered by the employer for alcoholism (e.g. health benefits, time off
for rehabilitation, counseling, employee assistance programs). The
supervisor should document the meeting, and if the employee
acknowledges possible alcoholism, the record should be placed in the
employee's confidential medical file,
as required by the California Medical Records Act, rather than
a general employment file.
If performance problems continue and the employee
is not undergoing rehabilitation and treatment, the employee should be
given the opportunity to sign a "last chance agreement."
This agreement should memorialize that the
employer has given warnings about the employee's poor performance
caused by alcoholism and has discussed rehabilitation options with the
employee. The employee should agree to undergo a specific treatment
program and remain alcohol-free, and state that the employer has the
right to test for alcohol and to terminate the employee should he or
she fail to stay alcohol-free.
Reasonable accommodation, treatment and
rehabilitation
Employers should avoid "regarding" an
employee as an alcoholic. If the employee denies having a drinking
problem, the employer should take the employee's word or risk a
disability lawsuit on the grounds that the employee was terminated
because the employee was "regarded" as having the disability of
alcoholism.
If the employee maintains that he or she does not
have a drinking problem, then the employer should continue to require
adherence to the job performance standards.
If such an employee requests leave to participate
in a rehabilitation program, the employer should provide it or risk
liability for failing to accommodate the employee's disability.
In addition, any reports of harassing comments
about alcoholism should be investigated and discriminatory comments
about a recovering alcoholic or an employee in treatment should be
avoided.
Supervisors should not give the impression that
alcoholism is the reason an employee is being disciplined or is on
leave from work. The California Labor Code (§1026) safeguards
employee privacy in this regard.
Employee behavior
The focus of comments and discipline should
consistently be on the employee's behavior (e.g., tardiness, poor
work quality, intoxication on the job). An employee's alcoholic
dependency should only be addressed by recommending or granting the
employee's request for a treatment program.
A leave to undergo a treatment program is the
most common reasonable accommodation employers provide for alcoholic
employees. The Department of Labor is clear that the FMLA covers only
absences needed to obtain treatment and does not cover absences caused
by the use of alcohol, 29 CFR §825.114(d), including time spent in
jail.
In addition, California Labor Code §1025
provides that every private employer regularly employing 25 or more
employees shall reasonably accommodate any employee who wishes to
voluntarily enter and participate in an alcohol or drug rehabilitation
program, provided that this reasonable accommodation does not impose
an undue hardship on the employer.
Like the Rehabilitation Act for federal
employees, the Labor Code also provides that an employer may refuse to
hire or discharge an employee due to the employee's current use of
alcohol, the inability to perform his or her duties, or the inability
to perform duties without endangering the health or safety of himself
or herself and others.
The employee must request an accommodation. If
the employee does not tell the employer of his or her disability and
request reasonable accommodation, the employer is not obligated to
provide one.
Thus the employer is generally not obligated to
accommodate an employee who denies that he or she has a problem. Of
course, where the choice is between termination and rehabilitation,
most employees will admit to a problem and request rehabilitation.
12-week leave
The employer must allow an alcoholic FMLA/CFRA
(California Family Rights Act) leave for treatment up to a 12-week
limit. To avoid violating the ADA, the employer should provide leave
for a certified need for rehabilitation at least up to the maximum
amount of leave the employer provides employees for other reasons.
However, leave should not be provided due to an incapacity to work due
to intoxication or its after-effects.
The ADA or Rehabilitation Act may require an
additional reasonable accommodation if the employee has other
disabilities. Depression, for example, is a common companion to
alcoholism, and the employee may legitimately request a less stressful
position if available and the employee is qualified.
The FMLA and the CFRA require that the employee
be returned to a same or similar position after protected leave.
As The Other Bar (a State Bar-affiliated program
for alcoholics) points out, alcoholism is not a moral issue; instead,
it is a treatable illness which causes deterioration in job
performance. The stigma is not in having the illness, but the failure
to seek treatment.
Employers and non-employment lawyers should seek
expert advice from experienced labor and employment lawyers to
navigate the myriad laws and regulations that affect managing
alcoholism in the workplace.
Karen V. Clopton is chief of operations of the Port of San
Francisco, which has 44 bars and restaurants that serve alcohol on
port property. She is a member of the State Bar's executive
committee for the labor and employment law section and has practiced
in the area for 18 years. |
