Employers – What Do You Do With a Drunk Employee?

Julie R. Pugh & Lee P. Geiger 

We often hear the questions: Can an employer fire an employee for being drunk? Or for being an alcoholic? If the answer is “yes,” then when? Steve Sarkisian brought this question to the media’s attention last month. As the head football coach at the University of Southern California, Sarkisian was rumored to be a prolific drinker. His employer likely knew about his alcohol problems based on several public displays of intoxication. On October 11, 2015, Sarkisian requested an indefinite leave of absence. The following day, USC terminated his employment. He sued, alleging discrimination and breach of contract. Sarkisian alleges he was a qualified individual with a disability and USC failed to reasonably accommodate him. Liability will depend on whether the University had a workplace policy prohibiting the use of alcohol, whether his alcohol dependency was impacting his performance, and whether the University knew Sarkisian had an alcohol dependency. We will be following the case closely, as the legal analysis could set new precedent. The law recognizes a person with an alcohol dependency has a disability. The Americans with Disabilities Act (“ADA”) prohibits an employer from discriminating against an employee with a disability. Employer may be required to provide an alcoholic employee with a reasonable accommodation, though the legal coverage depends on the employer’s knowledge. Let’s review different scenarios. Using a hypothetical “Coach,” what should an employer do when . . .

• Another employee sees the Coach pouring alcohol in his coffee at work. The employer should look at its workplace policy. The ADA allows employers to prohibit the use of alcohol in the workplace. This prohibition should be communicated to the employee in a workplace policy. In this situation, even if the employer knows that the Coach has or may have a disability protected under the ADA, the Coach may be subject to discipline consistent with workplace policies. • The Coach is consistently late to work, obviously because he stays up late drinking. The employer may hold the employee with an alcohol dependency to the same standards of performance and behavior as other employees. An employer need not tolerate absenteeism, tardiness, insubordination, or on-the-job-accidents related to an employee’s alcoholism if similar performance or conduct would not be acceptable for other employees. In this situation, the employer may discipline the Coach consistent with workplace policies. © 2015 Graydon Head & Ritchey LLP | THIS IS AN ADVERTISEMENT www.graydonhead.com • The Coach is convicted of a DUI. The employer must consider whether the conviction will impact the employee’s ability to perform the job. If driving is an essential function of the employee’s job, or if the employee is on the employer’s auto insurance, the employer should discipline the employee. If driving does not impact the job and there is not a workplace policy, the employer should carefully consider disciplining an employee for conduct that occurs outside the workplace. • The Coach confesses to his boss that he is a drunk. This should alert the employer the individual may be an alcoholic. Alcoholism may be a disability. An employer should initiate the reasonable accommodation interactive process if the employer knows or has reason to know the employee has a disability. Here, the boss should ask, “How can I help you?”

What Do You Do Now? Employers should proactively address issues relating to drugs and alcohol in the workplace. Employers should:

• Have workplace policies prohibiting the use of alcohol in the workplace. • Apply employment policies consistently. • Consider or review the company’s Employee Assistance Program (EAP). An EAP may be used in cooperation with, or in lieu of, disciplinary or corrective action. • Train managers to spot alcohol and drug-related issues, including how to use a reasonable suspicion checklist. • Communicate the company’s workplace policies to employees.

Prevention is key when dealing with employee issues. Look at workplace policies, training programs, and EAPs now so managers can appropriately respond when faced with a Sarkisianlike situation.