Can You Terminate An Employee For Drinking On The Job After A Request For Assistance?

/// Guest post by contributor Jerry Leemkuil, Federated Insurance

Can You Terminate An Employee For Drinking On The Job After A Request For Assistance?

Today Federated Insurance is sharing one our “HR Questions of the Month” regarding employment-related practices liability issues. 

Question: We have a restaurant/bar. We have a company policy that if you are caught drinking on the job, you can be suspended and/or terminated. We found a bartender in a beer cooler drinking while he was on the clock. He denied and lied about the situation, but later admitted this happened. After admitting this happened, he told a manager he needs help and wants to go to a drug re-habitation program and wanted to know if our company would help to pay for this. Question: Can we still fire this employee for breaking company policy even though after the fact he states he needs personal help and might need to take a leave of absence?

Response: There is no statutory protection for employees whose violation of a company policy is grounds for dismissal. While the federal Americans with Disabilities Act (ADA) does offer protection to employees who are alcoholics or drug addicts, such protection does not clothe such employee with immunity from the consequences of their actions at work. This means that while employers cannot unlawfully discriminate against employees who are disabled (including those disabled by alcoholism or drug addiction), and must offer such employees a reasonable accommodation when applicable, employers are not required to excuse disabled employees who violate a company policy that would be grounds for discharge if any other employee committed the violation. The EEOC and Department of Justice explain this as follows: "While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol." See this page of the ADA's website for more information (about 2/3 of the way down the page).

Here you indicate that an employee was "found" drinking beer on company property and while on the clock, and when confronted, denied that he had done this. He later admitted to the infraction as well as to having lied about it. If this is grounds for termination of employment consistent with employer policy and practice (and the employment relationship is at will), we are not aware of any law that requires the employer to be more lenient with this employee on account of his subsequent claim that he "needs personal help" or wants to attend a drug rehabilitation program (which, incidentally, does not necessarily mean he is an alcoholic or addict and thus may not be disabled under the ADA at all). If, however, other employees who were caught drinking on the job were suspended and/or otherwise not discharged, and the employer seeks to terminate the employment of the bartender in question, there could be exposure to a claim -- indeed the employee could argue that he was treated more harshly (i.e., discharged) because he disclosed a potential disability and/or the employer regarded him as though he had one. The employer might be able to defend a claim of this nature by showing that the employee's dishonesty also contributed to the decision, if that is the case, but the best practice is to seek to avoid such claims in the first place by treating similarly situated employees in a uniform manner.

The best practice is to treat the employee here consistently with employer policy and past practice, and in the same way as he would have been treated had he never mentioned his need for "personal help" or desire to take leave to seek rehabilitation.

//  NATSO Chairman's Circle member Federated Insurance is extending an offer to NATSO members to attend a webinar titled Employment Tort Exposures and the Affordable Care Act. Held on Tuesday, June 23, 2015 at 2:00 p.m. EDT, the webinar will focus on ACA initiatives and privacy issues including best practices for recordkeeping, how to deal with clawback issues and ACA whistleblowers and conflict between ACA, GINA, and ADA. Learn more and register by clicking the image below. 

{Guest Post} Guest post provided by Jerry Leemkuil, Federated Insurance. For more than a century, Federated Insurance Companies has provided peace of mind to business owners through valued insurance protection. Learn more about Federated Insurance.

The opinions and advice given by guest post contributors are not necessarily those of NATSO Inc. The posts should not be considered legal advice. Qualified professionals should be sought regarding advice and questions specific to your circumstances.

This article is intended to provide general information and recommendations regarding risk prevention only. There is no guarantee that this information will result in reduced losses, lower premiums, or lower experience modification factors. The content provided is accurate as of February 2015 and is subject to change. This information may be subject to regulations and restrictions in your state and should not be considered legal advice. Qualified counsel should be sought regarding questions specific to your circumstances and applicable state laws. © 2015 Advisors Law Group, All Rights Reserved