Is it Legal to Fire an Alcoholic?

The InterviewWhat would you do if one of your employees is clearly drunk while at work?  If your answer is to fire the lush on the spot, you should think twice.  In fact, your  inebriated employee may be an alcoholic, in which case he or she is considered to be disabled under the Americans with Disabilities Act (“ADA”).

The ADA prohibits employers from discriminating against employees with a “disability,” and requires employers to provide “reasonable accommodation” to enable them to gain or continue their employment.

So what does this mean?  An individual is considered to have a “disability” under the ADA if he or she has a chronic physical or mental impairment that substantially limits one or more major life activities.  “Reasonable accommodation” is any modification or adjustment to a job or the work environment that will enable a disabled but otherwise qualified individual to participate in the application process or to perform essential job functions.

So does all this mean when you’re faced with an employee who’s three sheets to the wind?  Whether you can fire the drunkard or need to provide them with reasonable accommodation depends upon two things:  (1) your workplace policy; and (2) your level of knowledge.

1.  Workplace Policy

The ADA allows employers to prohibit the use of alcohol in the workplace.  If this is your policy, it is vitally important that it be communicated to all employees in a written workplace policy document.  You must also be certain to apply your policies consistently.  If you do this, regardless of whether a drunk employee is an alcoholic, you don’t have to tolerate their drunken behavior.  You can discipline or fire them  in a manner consistent with your workplace policy.

1.  Knowledge

What if you know or suspect that an employee is an alcoholic, but they haven’t been overtly intoxicated at work?  Perhaps they appear hung over on a regular basis, or another employee passes on the information to you, or the employee confesses their problem to you or a manager.

If you know or have reason to know the employee is an alcoholic, then he or she may be entitled to reasonable accommodation.  You should therefore think proactively and consider how you can reasonably accommodate their condition before they come to work drunk and you’re forced to terminate them.   Perhaps your company insurance covers treatment for alcoholism, or you have an  Employee Assistance Program in place that can be implemented instead of  disciplinary or corrective action.  If you don’t have anything like this in place, then you should take the employee aside and strongly suggest that he or she seek treatment on their own before it becomes too late.

The bottom line is that prevention is key when dealing with employee issues such as alcoholism. Train your managers to look for telltale signs, and have a look at workplace policies, training programs, and EAPs to avoid disruption at your office.

Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.