RP Consultants - Published Articles - The Why, When, Where and How of Adding Administrative Help (Part 2 of 2)

One of the most frequent areas of employee discipline that most of my clients ask for help in is the area of suspected use of alcohol and/or drugs by one of their employees and how they can investigate, discipline, or even terminate that employee.

Our society is becoming more complex in all arenas, whether professional, personal, financial, or social. As a result, alcohol or drug use, instead of being the exception in the life of the employee, has become more often the rule. This is an area in which an employer must be very cautious, to avoid liability from the legal aspects of invasion of privacy and many of the federal and state laws.

Here are some general suggestions as to what your rights as an employer may be under these circumstances and what processes you, as the employer, need to follow. (Always keep in mind that each state has its own laws that control the procedure of investigation and discipline, so the advice of counsel is always recommended.)

Many employers frequently suspect that an employee is under the influence of alcohol at work. When this situation arises, employers have the right to require the employee to leave the workplace and to take other disciplinary action. Employers must, however, act cautiously so as not to violate applicable state and federal laws. While each situation must be addressed based on all the circumstances involved, several general rules apply.

Obtain Factual Documentation

Before taking any action against the employee, an employer should document the facts leading it to believe that the employee is under the influence of alcohol. Often an employer learns of the possible use when a first-line supervisor or a co-worker reports, to a manager, having smelled alcohol on another employee’s breath or having observed some conduct typically associated with alcohol use. Upon receiving this type of report, the manager should ask the reporting employee what he or she saw, smelled, or heard, and write it down. The reporting employee should be allowed to read the documentation and, after confirming its accuracy, be asked to sign and date it. Alternatively, the manager should ask the reporting employee to write what he or she saw, smelled, or heard, and to sign and date the documentation.

In either instance, the manager must be careful that the documentation provides only factual information, not conclusions. For example, the documentation should not state, “Joe is drunk.” Rather, it should state, for example, “I smelled alcohol on Joe’s breath at approximately 8 a.m. when talking with him about today’s work assignment. Joe’s eyes were bloodshot, his speech was slurred, and he moved very slowly.” Appropriate factual documentation will help support any subsequent disciplinary action and reduce the risk of a defamation claim. Defamation claims typically arise when employees believe the reports about their behavior are false and harmful to their reputation. The manager should caution the reporting employee to keep the information confidential. The manager also should consult the company’s human resources department for assistance.

As soon as possible after receiving the first report, the manager or another employee trained in recognizing the symptoms of alcohol use should interact with the subject employee, observing his or her speech, physical movements, eyes, and breath, and note any other indicators typical of someone under the influence of alcohol. If necessary to prevent harm to the employee or others, the manager should immediately remove the employee from the job site to a private office or other appropriate workspace. The manager also should document factual observations, and date and sign the documentation.

Meet with the Employee

If the facts reasonably support a belief that the employee may be under the influence of alcohol, then—before taking any disciplinary action against the employee—the manager (preferably together with another manager or human resources representative) should meet with the employee. The purpose of this meeting is to provide the employee an opportunity to explain the documented behaviors and observations and gather more facts. The employee’s response will determine the employer’s next steps. The second company representative should take notes during the meeting.

Accommodate as Required

If the employee denies or offers an alternative explanation for the observed behavior, the employer must assess the employee’s credibility and weigh all of the facts before determining the next step.

If, however, the employee admits he or she has an alcohol problem, in most cases the employer should immediately shift into “accommodation” mode. Alcoholism is regarded as a “disability” under state and federal law. Under both the federal Americans with Disabilities Act (ADA) and most state laws (e.g., the Minnesota Human Rights Act (MHRA), California Family Rights Act (CFRA), and California’s Labor Code, time away from work (whether paid or unpaid depending on the employer’s leave policies) for alcohol treatment is generally regarded as a form of reasonable accommodation that must be provided unless it causes the employer undue hardship. If the employee takes time away from work for alcohol treatment and the employee is otherwise eligible, that time will be covered by the federal Family and Medical Leave Act (FMLA).

Once an employee indicates that he or she has an alcohol problem, the employer may require the employee to obtain an assessment/evaluation of the need for treatment. The employer or employee may wish to arrange for that assessment, either through the company’s employee assistance program (EAP), if available, or some other means. If the assessment recommends treatment, then the employer may want to require the employee to enter into a written agreement regarding treatment and potential return to work after treatment. This type of agreement typically requires the employee to do some or all of the following:

• Provide documentation of an assessment/evaluation for alcohol dependency by an accredited program.

• If treatment is recommended, provide a general outline of the proposed treatment plan and written authorization for the treatment program to provide the employer with periodic updates of the employee’s continued participation and fulfillment of the program’s requirements.

• Successfully complete any recommended treatment and provide documentation of that completion.

• Before returning to work (either while participating in a recommended treatment program or after completion of the program), provide documentation of fitness for duty from a healthcare provider certified and/or accredited in the treatment of chemical dependency.

The agreement also typically states that failure to complete the requirements will result in disciplinary action, up to and including immediate termination.

At the end of the meeting, the employer may require the employee to leave the workplace if the employer concludes, or the employee admits, that he or she is under the influence of alcohol. If so, the company should arrange for transportation to take the employee’s home; the employee should not be allowed to drive. If employers allow employees to leave under their own control, employers may be liable for any damages that may result from the employees’ injuring themselves or any another individual.

Discipline Appropriately

For both those employees who deny and those who admit the observed behaviors, the employer must determine whether disciplinary action is necessary. The employer should review and assess the documentation, the employee’s personnel record, any applicable contracts and policies in the employee handbook (including any policy prohibiting coming to work under the influence of alcohol), and the employer’s past practices for handling similar situations. Of course, first‑time offenders who admit their use should not be terminated; for, if they were, it would violate the accommodation requirements of the ADA, CFRA, and MHRA.

Test Only Per the Law

When the use of alcohol is suspected, employers often want to test an employee to determine whether these suspicions are correct. For an example, in most of the state laws, which include Minnesota and California, employers are allowed to test employees only if the employers have previously published a written policy that complies with their state’s Drug and Alcohol Testing in the Workplace Act. No employers who lack a written policy may test, even if employees volunteer to be tested.

Keep in mind that the preceding guidelines provide a general framework for responding to suspected alcohol use. The procedure for responding to suspected illegal drug use, while similar in some respects, is different in others because current use of illegal drugs is not regarded as a disability under the ADA or most of the State Acts. Make sure that your company develops a comprehensive drug and alcohol program, and be sure you state your policy in your employee handbook.

As with any employee-conduct issue, in the case of suspected alcohol or illegal drug use, a company must consider all circumstances before determining the appropriate response. Again, a caution: Because of the complexity of this area, employers faced with this situation should contact their employment counsel.

About the author
Robert Palow is president of RP Consultants, a Placentia, CA based company that specializes in labor and employment practices. He has more than 30 years of management and legal experience in the human resource field.