Employees in Treatment for Substance Abuse
Dear Solve HR,
I really need help with this one. My employee of one year has been erratic lately, showing up more than two hours late for his shift on two occasions, forgetting to perform some very important safety protocols during his work, and lashing out at a coworker in violation of our employee conduct policy. I coached him on these occasions verbally and in writing, but things haven’t improved. At the most recent meeting three days ago, I let him know that if he arrived late or violated policy one more time, he would be subject to termination.
Today, he showed up an hour late, without a phone call or any communication. When he arrived, I handed him a termination letter, and told him that he was fired. His response was that he was an alcoholic and was attending outpatient therapy, but was having a hard time sticking to his program. I told him I was sorry to hear that but that he was still terminated.
I walked him out of the building and he left. My manager thinks I did the right thing. Now I’m worried that maybe it was the wrong choice.
What do you think?
Yikes! This is one of those sticky situations that doesn’t come up every day. I understand your concern, and I hope that part of your worry is about making sure this employee is okay. We all find ourselves sick and unable to work at one time or another, and hopefully your company is supportive of people who need help, by providing care through your employee assistance plan, health insurance benefits and short term disability salary continuation if those things are available.
That said, the repeated problems you described are serious, and you had no way of knowing your employee needed help for a medical condition, because he didn’t ask for it or disclose his struggles. He just kept messing up at work and not telling you about what was going on. But you can probably understand why he wasn’t too eager to disclose that he was in treatment for alcoholism.
Before we start talking about the situation, I will recommend that you consult your company’s attorney or another employment lawyer to obtain advice about what to do in this situation. Legal advice is critical in hazy situations like this one. So do yourself a favor and be sure to involve your HR manager as well as your legal counsel on the front end before completing a termination in a situation like this.
While it’s true that your employee should be held accountable for his failure to arrive at work on time, performing his essential job duties and adhering to your employee code of conduct, and his explanation doesn’t erase the prior behavior for which he is subject to discipline, this situation merits further analysis. When your employee told you that he was an alcoholic and had been seeking treatment, that statement could be interpreted as a request for leave as a reasonable accommodation for a disability.
A “qualified individual with a disability” entitled to protection under the Americans with Disabilities Act (ADA) is defined by the EEOC as:
A person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation. An "individual with a disability" is a person who 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.
According to the Job Accommodation Network (JAN), this standard of an impairment that substantially limits one or more major life activities has been interpreted to include alcoholism. If your employee was an alcoholic refusing to obtain treatment and repeatedly violated policies and did not perform essential job functions, then a well-documented termination would certainly be an appropriate option. If we consider your employee’s disclosure as a request for leave, then that infuses this termination with a distinct lack of clarity.
Technically it sounds like you terminated this employee prior to his disclosure. But issues of fact may remain here. The EEOC does not generally view technicalities favorably-their view is likely to be that your employee disclosed his condition at the 11th hour and asked for help, and if you don’t make an effort to engage in the interactive process at that point, you may be held accountable for violating the ADA.
If your employee had gone home after being terminated, then called at some later date to talk about how his medical condition had caused his poor performance and requested help at that point, then it would be much clearer that you had terminated employment based on documented performance problems, without him having requested a reasonable accommodation.
Let’s look at the benefits to your company for allowing your employee to stay on and take leave for treatment:
- You retain a knowledgeable and experienced resource on your team, instead of losing the investment you’ve made in that employee and incurring turnover costs
- You promote loyalty and gratitude from that employee, and hopefully a more productive and motivated employee when he recovers and returns to work
- Your other employees respect and appreciate that you care for your employees when they are vulnerable and sick, and that you will support them through difficult times as well if they need help
- You reduce legal risk and potential reputational damage that can arise from EEOC action
One caveat: if you routinely drag your feet in dealing with performance issues, and this is an employee that everyone recognizes should have been terminated a long time ago but wasn’t because management didn’t do the job, then you may encounter frustration, both from upper management and coworkers. But don’t give in to the pressure to terminate an employee abruptly in a situation like this when in truth you haven’t been on top of performance management and discipline in the past. If you find yourself in that situation, it is probably worth the additional time and work to give the employee the opportunity to get well and perform his job duties, and manage him appropriately going forward.
You also mentioned that this employee failed to adhere to an important safety protocol at work. If an employee is in a work situation where being under the influence of alcohol presents a safety risk to himself and others, you may be within your rights to randomly test for the presence of alcohol after he returns to work from treatment. Certainly, your reasonable suspicion drug and alcohol testing protocols should still be utilized, consistent with what all employees are subject to in your workplace.
Again, consult with your HR team and attorneys to get specific advice about how to proceed.
Kelly & the Solve HR Team
Visit Solve HR, Inc.