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Arévalo: Employee substance abuse a dilemma for employers

Imagine you are the manager of a small manufacturing facility. You are walking the plant floor early on a Tuesday morning and notice that one of your two supervisors is engaged in a lively discussion with one of the employees.

The supervisor seems agitated while the employee looks a bit overwhelmed. You approach both individuals and ask about their conversation. The supervisor proceeds to inform you that the employee has been having punctuality and attendance issues, coming into work late several times over the past couple of weeks. In fact, the supervisor had given the employee a verbal reprimand just last week after the employee was late a second time.

Then, the supervisor tells you he was in the middle of advising the employee that he would now give him a written warning because he was absent the day before and came in late this morning. As far as you recall, what the supervisor intends to do is consistent with your company’s progressive discipline, so you expect to approve his recommended action.

After a pause in the conversation, you look at the employee, who appears to be very concerned about the whole situation.

Before you have a chance to ask any questions or comment, the employee tells you he is an alcoholic and has been struggling with his addiction lately. He also tells you he had not had any issues for some time until recently when his wife asked him for a divorce and left him. These events have had a major impact on him. The employee then tells you his absences and tardiness are related to his staying up late at night drinking in his empty house to get over his pain.

He acknowledges he needs help and says he wanted to talk to you about the company’s Employee Assistance Program but had not had the chance. What do you do now?

According to a United States Department of Labor’s General Workplace Impact Substance study, more than 10 percent of full-time employees and 11 percent of part-time employees are classified as substance dependent. So you know the problem exists. Whatever the statistics say, now one of these employees works for you, and steps need to be taken. And, of course, you are concerned, not just for this employee but for the safety of your workforce.  

The first thing you need to be aware of is that the Americans with Disabilities Act, if applicable to your company (or the Illinois Human Rights Act for certain entities with less than 15 employees), offers protection to an employee affected by alcoholism who is qualified to do the job and can meet the ADA’s definition of “disability.”

If these requirements are satisfied, which is not always the case, certain statutory obligations are triggered. This does not mean you cannot have a policy in place prohibiting the use of alcohol in the workplace or being under the influence while on the job. In the event of any violation of such policies, you can issue discipline.   

However, once an employee has voluntarily disclosed his condition and has requested assistance, you may consider holding off on any discipline and instead provide a referral to treatment as an alternative.

Under ADA, part of your obligations include engaging in an “interactive process” designed to elicit a reasonable solution that does not create an undue hardship on your part as an employer.

You should consider ways to accommodate the employee while he undergoes treatment. This may include extending leave if it is necessary that the employee receive inpatient treatment. Alternatively, you may provide a modified schedule to allow the employee to go to counseling.

As a condition of foregoing discipline, you may require completion of treatment. All of these steps will not prevent you from issuing additional and progressive discipline should the employee continue to have tardiness, attendance issues, other poor performance or even misconduct. If the employee continues to have issues even after reasonable efforts on your part, a “last chance agreement” presents a final option.

This agreement will outline the employee’s and your obligations moving forward. It can include strict conditions such as testing and other periodic monitoring. Breach on the part of the employee would be a basis for termination.

Substance abuse and alcoholism are legitimate workplace problems. Options are available to support an employee struggling to overcome these issues. However, an employer is still able to take steps to ensure workplace safety and protect its interests. 

• Carlos Arévalo is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Reach him at 815-459-2050.

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