Q: On several recent occasions coworkers and a customer reported that an employee had the odor of alcohol on his breath during the workday, although there were no obvious signs of impairment. When confronted, the employee said something about possibly taking FMLA leave, although he did not specifically refer to alcoholism or any other medical condition. We are concerned where this may be heading. Are our hands tied from acting until he’s more obviously impaired on the job?
A: You are not powerless to act. An employee with alcohol on his breath at work is a legitimate cause for concern. Even if someone has been diagnosed with alcoholism by a professional healthcare provider, consumption before or during scheduled work hours is not protected activity. A worker cannot claim that being an alcoholic relieves him of being held accountable for consuming alcohol at or before work.
Ignoring the situation until it gets worse is probably not advisable, as it leaves others uncertain about the worker’s fitness for duty. Coworkers and supervisors may wonder whether or not he is impaired or can be trusted to perform any number of activities where safety or accuracy is a major concern: drive the company vehicle, handle hazardous substances, connect the right wire to the correct terminal, properly document an assembly procedure so that a product meets specifications, record a transaction to the proper account—to name just a few.
It would also be legally questionable to deny a request for time off to obtain treatment if the diagnosed condition is a “serious health condition” as defined by the FMLA.
Such a condition typically requires an overnight stay in a hospital or medical facility; results in incapacity for more than three days followed by ongoing medical treatment or follow-up; or is a chronic condition causing occasional periods of incapacity requiring at least twice yearly treatments.
However, if the request for FMLA or ADA protection is made only after a disciplinary confrontation triggered by observed impairment, proceeding with the discipline may still be a viable, legally defensible strategy. Neither the ADA nor FMLA restricts an employer from requiring compliance with existing performance and conduct standards, and signs of impairment, including alcohol on someone’s breath, should be considered a violation of such standards.