Q We administer a voluntary leave program through which workers can donate paid leave to their colleagues to obtain necessary medical treatment. Recently an employee asked to use the program to seek substance abuse treatment for alcoholism. This isn’t the type of treatment we had in mind when we established the program. Are we required to allow this?
Q We have an employee in a high-risk, safety-sensitive position who recently admitted to extreme alcohol abuse. We are now concerned that he, his colleagues, and our company are at risk because we can’t depend on his work. We’d like to discharge him, but we’re unsure of the legal risks.
These are real situations for real employers. In its most recent economic study on the subject, the Centers for Disease Control and Prevention (CDC) reported that alcohol abuse costs the United States nearly $224 billion each year in lost productivity, health care, and damage to property. Studies on the workplace-specific effects of alcohol abuse have estimated employer costs between $33 billion and $68 billion annually.
Alcohol is the most widely abused drug and the third leading preventable cause of death in the United States, and its effect on the workplace is a topic that nearly every employer will eventually have to address.
What is an alcohol use disorder?
The National Institute on Alcohol Abuse and Alcoholism (NIAAA) estimates that 17 million Americans suffer from an alcohol use disorder. Alcohol use disorders are diagnosable medical conditions that take two forms—alcohol abuse or alcohol dependence (alcoholism).
Alcohol abuse represents a pattern of maladaptive drinking that leads to social or legal problems through, for example, failure to fulfill work, school, or home obligations, use of alcohol in hazardous situations, and disorderly conduct related to alcohol use. Alcohol dependence, or alcoholism, is a chronic, generally lifelong disease characterized by a heightened tolerance of, desire for, and physical dependence on alcohol that may also result in withdrawal symptoms.
Are you required to provide leave for treatment?
Recall that the Americans with Disabilities Act (ADA) prohibits employment discrimination against “qualified individuals with disabilities.” An individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
Though individual circumstances will vary, alcoholism is generally considered a protected disability. That means that, as with other chronic illnesses, employees with alcoholism may not be discriminated against solely on the basis of having, having previously had, or being regarded as having the disease. You can’t terminate, demote, or deny medical leave or other benefits to an otherwise qualified employee simply because he is (or is believed to be) an alcoholic.
Therefore, if other employees with similar chronic illnesses would be allowed to take part in a leave donation program for their conditions, then an employee also should be allowed to do so for alcohol treatment. Further, employees who seek treatment for alcoholism may qualify for leave under the Family and Medical Leave Act (FMLA) if the treatment is provided by or on referral from a healthcare provider. Finally, as with any other ADA-protected disability, you may be required to provide reasonable accommodations—for example, a flexible work schedule and/or use of paid or unpaid leave—to permit the employee to attend needed counseling and treatment.
What if we terminate a high-risk employee with alcoholism?
Note the important distinction above regarding “qualified” individuals—that is, individuals are protected by the ADA only to the extent they’re qualified to perform the job. This means you may still discipline, discharge, or deny employment to an employee whose disability—in this case, alcoholism—impairs job performance or conduct to the extent that he isn’t “qualified” to perform the essential functions of the job.
One way to look at the situation is to note that your role as an employer is not to diagnose an employee’s alcoholism but, rather, to deal with any performance, conduct, or safety problem in the workplace and take appropriate disciplinary action. For example, if the employee’s work is unreliable, he is often absent or late, or he is aggressive and belligerent, then those specific matters—not the underlying cause—should be addressed as they would be for any other employee.
However, if there are no documented issues with the employee’s performance, then he shouldn’t be disciplined or otherwise discriminated against simply because he has revealed he may suffer from alcoholism.
When addressing alcoholism in the work context, it’s important for you to act only on actual workplace conduct rather than on fears, perceptions, and stigma that are, unfortunately, still associated with the disease of alcoholism.
You may certainly maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace, and you may enforce general workplace policies regarding absenteeism, job performance, and safety. However, just as you wouldn’t terminate an employee for having cancer or for seeking treatment and counseling related to her disease, you must not discriminate against employees merely for having or seeking treatment for alcoholism.
Holly K. Jones, J.D., is a Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.