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. 
A Unfortunately, this is a common dilemma faced by many employers. The initial question you must ask yourself is whether you are required to provide the employee 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.
Although individual circumstances will vary, alcoholism is generally considered a protected disability, which means that, as with other chronic illnesses, employees with alcoholism may not be discriminated against solely on the basis of having, previously having, 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 a leave of absence for their conditions, then an alcoholic 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 paid or unpaid leave—to permit the employee to attend needed counseling and treatment.
If you make a business decision that you just cannot continue to employ a high-risk employee with chronic alcoholism, you should keep in mind the important distinction about “qualified” individuals—that is, an employee is protected by the ADA only to the extent that he’s qualified to perform the job. That means you may still discipline, discharge, or deny employment to an employee whose disability—in this case, alcoholism—impairs his 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 an employer’s role 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 just like they would be for any other employee.
In sum, employers should maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace in addition to general workplace policies on absenteeism, job performance, and safety. However, just as you wouldn’t terminate an employee for having cancer or for seeking treatment and counseling for their disease, you must not discriminate against employees merely for having or seeking treatment for alcoholism.
Caren W. Stanley is a partner in the Fargo, North Dakota, office of the Vogel Law Firm. She can be reached at 701-237-6983 or cstanley@vogellaw.com .