HR Hotline: Can We Discipline an Employee Suspected of Being Under the Influence?

Q: We just learned that one of our employees, who recently took a leave of absence, did so to attend a drug and alcohol rehabilitation program.

He’s now back at work after informing us about the rehab, but we’re concerned that he may be under the influence of drugs or alcohol, and his current role has some safety implications for our customers.

Can we terminate his employment, or demote him to a different role with less responsibility?

A: Maybe—but the answer depends on several factors, and taking adverse action now, such as termination or demotion, may violate state and federal laws prohibiting discrimination.

The Americans with Disabilities Act, along with Connecticut’s anti-discrimination statutes, prohibit discrimination based on disability, including disabilities from alcoholism and drug addiction.

However, the ADA also specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol.

So how can an employer comply with both mandates?

The first determination an employer must make is whether the employee has a “disability,” as defined by statute.

It’s important to recognize that the law treats alcoholism and drug addiction differently.

ADA Provisions

For example, regarding drug use, an employee who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability” according to the ADA, and so is not protected by the law’s anti-discrimination provisions.

On the other hand, those who have been successfully rehabilitated, those who are currently participating in a rehabilitation program and are no longer using, and those who are erroneously “regarded” as using drugs, are protected.

Individuals may be considered disabled under the ADA if they are an alcoholic or a recovering alcoholic.

With respect to alcohol use disorders, individuals may be considered disabled under the ADA if they are an alcoholic or a recovering alcoholic.

It’s important to note, however, that employers are free to discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job performance.

For example, an alcoholic employee who is often late to work may be terminated on the basis of poor job performance, because the termination is based not on the disability itself, but on the employee’s work-related conduct.   

‘Direct Threat’

Finally, it’s important for employers to understand the concept of “direct threat.”

The ADA permits an employer to require that an employee not “pose a direct threat to the health or safety of other individuals in the workplace.” 

When determining whether an employee’s history of drug or alcohol use poses a direct threat to others, the employer must make an individualized assessment of the employee’s ability to safely perform the essential functions of the job.

Employers should evaluate information from the employee, as well as the employee’s doctors and counselors, where possible.  

So can an employer terminate or demote an employee who recently attended rehab? 

The answer will be “yes,” if the employee:

• Is currently using illegal drugs, even while continuing rehabilitation efforts
• Is an alcoholic whose alcoholism is impacting his job performance
• Poses a direct threat to others in the workplace because of his drug or alcohol use

Evaluate

The answer will be “no,” if the employee:

• Successfully completed rehab and is no longer using drugs
• Is an alcoholic who performs well but may need a modified schedule to attend AA meetings
• Has performed the job with no indication that the disability impacts the safety of others

The most important thing the employer can do here is collect and evaluate information.

Speak to the employee. Ask about the completed rehabilitation program. Request a note from a healthcare provider regarding the employee’s ability to return to work. Evaluate the job performance, the job’s requirements, and the potential safety concerns.

And if in doubt, consult a lawyer. 

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HR problems? Email or call CBIA’s Diane Mokriski at the HR Hotline (860.244.1900) | @HRHotline