Drummond Woodsum Attorneys at Law

Portland, ME        207.772.1941
Portsmouth, NH        603.433.3317
Manchester, NH        603.716.2895
Lebanon, NH        603.448.2221


May 12, 2014

Many employers are faced with employees who report to work impaired or employees who are absent from work as a result of alcohol consumption or dependence. What can an employer do in these situations or when they believe an employee is drinking too much?

Employees Who Drink Too Much and State/Federal Disability Laws

While most employers no longer tolerate drinking at the office like the principals of Sterling Cooper in the hit television show, Mad Men, the impact of alcohol use and abuse on employment is not limited to bygone eras. According to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), an estimated 17 million Americans have an alcohol use disorder (AUD)—a medical term that includes both alcoholism and harmful drinking that does not reach the level of dependence. Indeed, many employers deal with alcohol-related issues on a regular basis. This includes dealing with employees who report to work impaired, employees who report to work under the influence of alcohol, and employees who are absent from work as a result of alcohol consumption or dependence. In addition, alcohol abuse raises concerns regarding workplace accidents, property damage and poor performance. What can an employer do when they believe an employee is drinking too much?

Federal and State Disability Laws

First, it is critical that an employer not jump to conclusions about how an employee's alcohol use may impact his/her job performance. Alcoholism may be a protected disability under state and federal disability laws. Under the Americans with Disabilities Act ("ADA") and the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA"), alcoholism is a "physical or mental" impairment for purposes of determining whether someone is disabled within the meaning of the ADA, but would only constitute a disability within the meaning of the ADA if it also substantially limits a major life function. FN-42 U.S.C.A. § 12102(1). An employee may also be "disabled" under the ADA if s/he has a "record of" alcoholism that substantially limits a major life activity or is "regarded as" having such an impairment, whether or not the actual or perceived impairment limits or is perceived to limit a major life activity. See 42 U.S.C.A. § 12102(1)(3). Thus, an employee may be covered under the ADA as disabled if s/he is perceived as an alcoholic, whether or not s/he is perceived as being substantially limited in a major life function.

New Hampshire disability law does not specifically address the issue of alcoholism as a disability (although it specifically excludes certain illegal drug use), but uses the ADA's definition of a disability. See N.H. RSA 354-A:2, IV. As a result, it is likely that, depending on how much of an impact alcohol use has on a person's major life functions, alcoholism may be a disability under New Hampshire state law. In Maine, however, alcoholism is a per se disability under state law. See 5 M.R.S.A. § 4553-A (1)(B). In addition, an employee may be "disabled" for purposes of the Maine Human Rights Act if s/he has a record of alcoholism or is "regarded as having" or as being "likely to develop" alcoholism. Id. at § 4553-A (1)(C)-(D).

Holding Employees Accountable

While these laws generally restrict an employer from taking an employee's alcohol use or abuse into consideration when making employment decisions, an employer is not prohibited from holding employees accountable for absenteeism or poor job performance, even if the absence or substandard performance relates to the employees use or abuse of alcohol. In fact, Section 12114(c)(4) of the ADA specifically provides that an employer "may hold an employee who . . . is an alcoholic to the same qualification standards for employment or job performance and behavior that [the employer] holds other employees, even if any unsatisfactory performance or behavior is related to the . . . alcoholism of such employee." 42 U.S.C. § 12114(c)(4). In addition, employers may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees and may prohibit employees from being under the influence of alcohol or from engaging in the illegal use of drugs at the workplace. Id. at §§ 12114(c)(1)-(2).

Tips for Managing the Impact of Alcohol Abuse without Violating Disability Laws

An employee's decision to drink is a matter of personal choice. An employer, however, has a legitimate reason for concern when the use or abuse of alcohol interferes with the employee's ability to perform his or her duties, or when an employee's use or abuse of alcohol may impact an employee's safety or the safety of others in the workplace. Employers should have clear rules in place regarding the use of alcohol in the workplace and reporting to work while under the influence of alcohol. This is especially important when doing so could cause safety concerns (e.g. when an employee is using heavy equipment or is around machinery). Employees should understand the consequences for both.

While an employer should not try and diagnose a drinking problem, employers should hold employees accountable for performance and attendance problems and discipline them accordingly. Employers should strive to treat the employee like other employees. Do not make assumptions about how an employee's drinking may affect his/her job performance. Rather, base your employment decisions on objective observations about performance deficiencies and leave out your assumptions about what might be causing the performance problems. If the employee requests leave to seek treatment for alcohol dependency, treat it like you would any other medical condition. Consider whether the employee is entitled to leave under the Family and Medical Leave Act, the ADA (unpaid leave as a reasonable accommodation) or company policies.

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