Question: Is an employer required to accommodate an employee who has identified that he has had problems with alcohol and illegal drug use with excessive absenteeism?
Answer: The guidance issued by the EEOC related to workplace alcohol and illegal drug use provides help for employers with situations where employees are abusing company attendance policies. While the Americans with Disabilities Act (ADA) may protect a “qualified” alcoholic who can meet the definition of “disability,” the ADA does not protect an individual who currently engages in the illegal use of drugs, although the law may protect a recovered drug addict who is no longer engaging in the illegal use of drugs. The ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees. This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.
Further, the employer may discipline the employee, suggest that the employee seek help from the EAP, or do both. An employer may impose the same discipline for an employee with poor performance or misconduct that results from alcohol or drug use as it would for other employees, or it may refer an employee to an EAP (although the ADA does not require employers to establish employee assistance programs or to provide employees with an opportunity for rehabilitation in lieu of discipline). Prior to taking any termination action, we do recommend consulting with your labor attorney. For more information about the EEOC guidance relating to performance and conduct, visit http://www.eeoc.gov/facts/performance-conduct.html#alcohol.