Firing Employees with a Drinking Problem
UPDATED: June 19, 2018
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Alcoholism is the single largest and most economically destructive addiction in America. An estimated almost-seventeen million Americans struggle with some phase of alcohol addiction, at a cost to industry of $186 billion each year, according to a survey by the National Survey on Drug Use and Health. The business costs of alcohol abuse can include loss of productivity, damages caused by an alcoholic employee, and possibly liability for the alcoholic employee’s acts (e.g., if they injure someone). Understandably, employers take employee alcohol abuse very seriously.
For employees suffering from drinking problems, there is both good and bad news. The good news is that you cannot be terminated simply for being an alcoholic; the bad news is, you can be terminated for what you actually do, if you engage in behavior that negatively affects the workplace.
Law Controlling Termination of Alcoholic Employees
There are two primary sets of federal laws potentially protecting an alcoholic employee: the (1) Americans with Disabilities Act (ADA); and the (2) Family Medical Leave Act (FMLA). (Your state may have additional laws providing other protection; at the very least, check your own state’s laws). These federal laws, which might protect an alcoholic worker from being fired, limit the so-called at-will doctrine that allows an employer to terminate an employee for essentially any reason. The reason that the ADA and FMLA provide some protections is that alcoholism can be considered a disease or medical condition, and Congress, in passing these laws, decided to limit the ability of an employer to terminate people solely due to medical conditions.
Americans with Disabilities Act
The Americans with Disabilities Act has two ramifications for employees with drinking problems:
(1) it prevents an employer from discriminating against an employee simply for having a disability, disease, or medical condition. Even an employer who is deeply personally opposed to alcohol use, or has a sincere and legitimate fear of liability resulting from an alcoholic employee, cannot terminate someone just because they have a drinking problem. Only detrimental work-related behavior, not just the possession of a medical condition, can justify termination; and
(2) the ADA requires that an employer give a reasonable accommodation to an employee who can demonstrate that he or she is substantially limited in a major life activity. If an employee can show that excessive and uncontrollable drinking prevents him or her from conducting the tasks necessary for employment, then the employee may be due an accommodation so they can rehabilitate from their condition and keep their job. The ADA generally considers granting an employee an appropriate leave to go through alcohol rehabilitation a reasonable accommodation. Therefore, while an employer does not have to pay for rehab (unless there is a written employment or union agreement requiring it to do so), the employer most likely has to allow an employee a chance to seek rehabilitation, provided the employee brings their condition to the employer’s awareness and asks for some reasonable period of time off for rehabilitation.
But there are some legal limits to the ADA’s protection. The law does not require that an employer tolerate relapse or a refusal to obtain help when given the appropriate chance. Should an employer offer an appropriate accommodation to an alcoholic employee, but the problems with the employee's alcohol abuse and job performance persist, an employer can rightfully terminate the employee.
Moreover, an employee must make the employer aware of his or her problem and ask for an opportunity to address the situation. The employer is not required to be a mind reader and does not have to guess that the employee’s issues are due to substance abuse. If the employee does not bring his or her substance abuse to his employer’s attention, the employer can terminate him or her for poor performance, absenteeism or lateness, etc., the same as any other employee could be terminated.
And, as previously stated, if the employee does not seek help, the employer can terminate him or her. There is no obligation for the employer to put itself out to help someone not trying to help him- or herself.
The employer’s only obligation is to make a “reasonable” accommodation—not only does that not require the employer to give the employee an unreasonably long time off, but sufficiently bad behavior at work can result in instant termination, regardless of the employee’s alcohol-related problem. Assaulting co-workers, customers, or visitors while drunk or impaired is something that would generally support immediate termination, for example.
Family and Medical Leave Act
The Family Medical Leave Act does not permit an employer to terminate an employee for extended (up to 12 weeks) unpaid absences taken in order to obtain treatment for alcoholism. Although absence from work due to alcoholism is problematic to the employer, if an employee is using the FMLA in order to access professional help in combating their disease, the employer cannot hold the absence against them.
That said, not all employers are covered by the FMLA. An employer must be at least moderate or mid-sized, with at least 50 employees located within a 75-mile radius, to fall under the FMLA. This means that many local and mom-and-pop businesses do not have to grant leave under the FMLA. Also, an employee must have worked at least one year at this business, and have worked at least 1,250 hours in the past 12 months, to be eligible for FMLA leave. And finally, as with accommodations under the ADA, an employee must ask to use FMLA leave (and must provide proof or documentation of a medical condition—i.e. of alcoholism). Help is not provided without properly requesting it.
Exception to the Law
Here again the law comes into play. You can discipline a worker for performance issues separate from his or her drinking problem. While having a disease or condition does not, by itself, allow termination, you can be terminated for your bad or inappropriate behavior, even if it occurred due to your medical condition. For example, the law doesn’t protect employees who drink at work, There is no requirement that an employer tolerate alcoholism while an employee is on the job.
In addition, the law doesn’t protect employees who commit crimes at work, damage the employer’s property, are openly insubordinate, have tardiness issues, or who do other things which would support “for cause” termination. They may generally be fired even if their actions stemmed from their alcoholism.
Any employee who, even if they are getting help, simply cannot do (or safely do—e.g. driving) some important part(s)/tasks of his or her job can be terminated. The employer doesn’t have to retain people who can’t do what they are hired to do. And similarly, if an employee loses some necessary license or authorization (such as a driver's license) required for their job due to drinking, their employer may terminate employment.
Getting Legal Help
Although time consuming and potentially costly, both an employer and an alcoholic employee’s best interests are often served by the individual obtaining treatment. By providing alcoholic employees with a reasonable accommodation to combat their disease, an employer can avoid the costs (including potentially liability, if the employer did not act appropriately) associated with firing someone, then recruiting and training a replacement, while the employee can continue to be gainfully employed. It is for this reason that the law encourages treatment when appropriate. An employer faced with an alcoholic employee should—in all but the most egregious or urgent cases—provide them with the opportunity to seek the help they need (such as participating in a rehabilitation program) before taking action adverse to the alcoholic’s employment.