With the rise of opioid and other drug addiction in the United States today, employers have to wonder—is it possible one of my employees is dealing with addiction? In the third article of a four-part series, Littler shareholder Dale L. Deitchler and associate Jeffrey E. Dilger discuss how to approach discipline where an employee might be dealing with substance abuse. Here is part 1 and part 2.
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First and foremost, no employer should discipline an employee because the employer suspects addiction or substance abuse. Imposing discipline based on mere suspicions of addiction or substance abuse is unlawful. So, what is an employer to do? What it’s good at. Analyzing, assessing and then, if warranted, acting on employees’ work-related performance, behavior issues, and conformance with work rules. The central question underlying any discipline must be: would the employer impose the same discipline even if it did not suspect the employee of addiction or substance abuse? This is fundamental. If the answer to this question is “no,” the discipline should not proceed. If the answer is “yes,” the discipline can proceed.
In proceeding with discipline, the employer should generally avoid any discussion of the suspected addiction or substance dependence—even if the basis for discipline is in violation of the employer’s drug and alcohol policies, and even if the employee claims to be an alcoholic or addict. For example, supervisors, who are not substance abuse professionals, should not agree if an employee claims to be an alcoholic or tell the employee he or she has a “problem.”
Suspecting an employee has an addiction is different from having a reasonable suspicion an employee is impaired at work. An employer should never act on the former. The latter can come in many forms, including observable indicia of impairment (e.g., slurred speech, staggered gait), a verified confirmed positive test result on a workplace test, or an admission of impairment. These are all scenarios in which discipline would likely be appropriate in most cases.
Situation #1: The Employee’s Addiction or Substance Abuse Issues Never Come Up.
If the employee doesn’t claim addiction or substance abuse issues, the employer should impose the discipline—if warranted—without any discussion of addiction or substance abuse.
Situation #2: The Employee Raises Addiction or Substance Abuse Issues During the Disciplinary Process.
It is not uncommon for employees to do their best to “get by” while battling addiction or substance abuse, fail to meet an employer’s work standards, begin the disciplinary process, and then—and only then—explain that they have an addiction or substance abuse issue. The employer needs to understand that while sympathy may be warranted, sympathy is not legally required. Under the Americans with Disabilities Act, an employer “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that [the employer] holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.”[1]
However, legal leave obligations must at least be considered in this context. Thus, while violations of employer performance and behavior standards need not be excused, in general, leave for rehab is for a “serious health condition.” If the employee is eligible for legally mandated leave or leave has been afforded under comparable circumstances, the failure to offer (not force) the opportunity to take leave and honor any request for leave could trigger risk under disability law reasonable accommodation mandates or technical risk under work-related leave laws, particularly if the employer intends to sever the employment relationship. To help reduce these risks, some employers that wish to terminate employment consider a strategy of offering leave and honoring any leave requests when an employee claims to be an alcoholic or addict, but these employers reserve the right following reinstatement from any leave to take action based on preleave conduct.
Others, in contrast, and understanding the risk, choose to terminate the employee at the time of the misconduct. In implementing a decision to terminate without offering leave when there is employee misconduct, employers rely on legal exclusion from protection based on verifiable misconduct preceding leave or claims of protected status.
If the employer wants to retain the employee but impose some lesser form of discipline for misconduct, most employers institute—with legal review—some kind of continuing work agreement such as a last chance agreement (LCA). Typical LCA provisions include a requirement that an employee submit to a substance abuse assessment by a qualified substance abuse professional (SAP), as employers are not qualified to make those assessments. Court decisions have also faulted employers that force employees to enter rehab when they might not actually be substance-dependent. The employee, for example, might have simply been on a weekend binge that carried over into the beginning of the workweek.
Other LCA provisions include requirements to comply with SAP-recommended rehab, where lawful return to duty, unannounced follow-up testing, and continuing employment are offered on a “last chance” basis. If an employee declines an LCA, subject to state law limits on discharge, employer flexibility to retain the employee will likely cease, and many employers will move to terminate employment.
DOT-regulated employers that wish to retain employees must, additionally, consider the extensive requirements that apply before a Department of Transportation (DOT) driver may be returned to DOT safety sensitive work. Those requirements are set forth in detail at 49 Code of Federal Regulations Part 40, Subpart 0 and include, but are not limited to, a DOT SAP evaluation, compliance with SAP recommendations, a post-rehab SAP report, and DOT-required (observed) return-to-duty and follow-up testing. (Note: The DOT takes no position as to whether to retain an employee who violates DOT drug/alcohol rules but only imposes conditions on a driver’s return to DOT safety sensitive work).
Finally, as the level of discipline is considered, unionized employers must always consider application of the “just cause” standard. Depending on the employee’s seniority, treatment of other union and nonunion employees in comparable circumstances, employer substance abuse/testing policies and other factors, labor arbitrators may conclude an employer lacked cause to impose the level of discipline desired, including employment termination. In one famous U.S. Supreme Court case, the Court upheld reinstatement of a driver who twice tested positive for marijuana and twice was reinstated by labor arbitrators.
Situation #3: The Employee Voluntarily Raises Addiction but Has Not Engaged in Misconduct
If an employee voluntarily claims to be an alcoholic or substance-dependent (and, e.g., asks for help), but has not engaged in misconduct, of course, no discipline should issue. Voluntary disclosure means the employee has not violated any employer rules or policies or failed to satisfy performance or behavior expectations nor has he or she been referred for a proper test under an employer’s workplace drug/alcohol testing policy. The most common and defensible employer approaches to voluntary disclosure situations is to offer express support, refer an employee to any Employee Assistance Program available and offer leave consistent with disability and leave laws and employer policies and practices. In voluntary disclosure situations, if an employee works in a safety-sensitive position or his or her disclosure relates to illegal drugs, continuing work agreements such as a return-to-work agreement (but not a last chance agreement) may be appropriate and lawful, but in most if not all other situations would be inappropriate.
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ale L. Deitchler, shareholder at Littler represents management in all phases of labor law, labor relations, and standards. Dale also counsels clients on a wide variety of employment law issues, offering advice and practical solutions about the Family and Medical Leave Act, discipline and discharge, employment discrimination, employment and non-competition agreements, and unemployment compensation
Jeffrey E. Dilger represents and counsels clients in a broad range of labor matters, including: Unfair labor practice proceedings before the National Labor Relations Board, labor arbitration, labor negotiations, and National Labor Relations Board elections. In addition to a robust labor law practice, Jeff routinely counsels clients in the ever-evolving field of federal and state drug and alcohol testing laws. Jeff’s practice includes assisting clients with all aspects of drug and alcohol testing programs, including creation, implementation and enforcement.
[1] See Miners v. Cargill Comm’ns, Inc., 113 F.3d 820 (8th Cir. 1997).
[1] 42 U.S.C. § 12114(c)(4).