Addiction at Work: Managing Employees with Drug and Alcohol Issues. Webinar September 21, 2011

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1 Addiction at Work: Managing Employees with Drug and Alcohol Issues Webinar September 21, 2011

2 Statutory & Regulatory Framework Federal Statutes Drug-Free Workplace Act Americans with Disabilities Act Rehabilitation Act Family and Medical Leave Act Federal Regulations Department of Defense Department of Transportation Nuclear Regulatory Commission

3 Statutory & Regulatory Framework State Statutes Minnesota Human Rights Act Minnesota Drug and Alcohol Testing in the Workplace Act Minn. Stat lawful consumables

4 ADA Overview Prohibits discrimination in employment against a qualified individual on the basis of disability Discrimination includes failure to make reasonable accommodations to known limitations of an otherwise qualified person with a disability 42 U.S.C

5 Definition of Disability Physical or mental impairment that substantially limits one or more major life activities; A record of a substantially limiting impairment; or Being regarded as (treated by an employer as) having a substantially limiting impairment 42 U.S.C (1)

6 Major Life Activities Defined Statute (and regulations) contain non-exhaustive list of major life activities, like caring for oneself, performing manual tasks, seeing, hearing, eating, etc. Major life activities include the operation of a major bodily function 42 U.S.C (2)

7 Alcoholism as Disability Prior to the ADAAA, courts held alcoholism could be a disability if it substantially limited a major life activity Under ADAAA, employers should assume alcoholism is a disability

8 Drug Addiction as Disability Current illegal drug use is not a disability under the ADA Exemption for current illegal drug use does not include employees who: Successfully completed rehab and are no longer using Are participating in supervised rehab and are no longer using; or Are erroneously regarded as using illegal drugs 42 U.S.C

9 Accommodation Do s Engage in interactive process with employee Consider each case individually: EEOC v. Old Dominion Trucking Co., W. D. Ark. (2011) Remember that employee need not use magic words, like disability or accommodation, to trigger employer s obligations But identifying need for accommodation generally is employee s responsibility Know employers rights under the ADA

10 Under ADA, Employers May Prohibit use of alcohol or illegal use of drugs at work or during work hours Prohibit employees from working under the influence of drugs or alcohol Request documentation that employee has disability and requires accommodation

11 Under ADA, Employers May Hold employees who abuse drugs or alcohol to same qualification standards for job performance or behavior as other employees, even if unsatisfactory behavior or performance is related to drug use or alcoholism

12 Reasonable Accommodations Time off or leave for treatment, counseling, AA meetings, etc. May include leave beyond the 12 weeks required under the FMLA Modifications to work schedule Ability to make personal calls (e.g., to AA sponsor or health care provider) during work day Permission to not attend work events where alcohol is served

13 Medical Examinations and Inquiries ADA does not prohibit: Screening new hires for illegal drugs After completing a rehabilitation program, testing employees for illegal drug use pursuant to reasonable policies or procedures Random testing for drugs or alcohol pursuant to last chance agreement Drug or alcohol testing where employer has objective evidence that employee cannot perform essential functions of job or poses direct threat

14 Family and Medical Leave Act Eligible employees may take up to 12 weeks of unpaid, job protected leave during any 12-month period for: A serious health condition that makes employee unable to perform functions of position 29 U.S.C. 2612(1)

15 Serious Health Condition Illness, injury, impairment, or physical or mental condition that involves: Inpatient care; or Continuing treatment by health care provider. Continuing treatment requires: 29 U.S.C. 2611(11) Incapacity of 3 consecutive days; and Two or more treatments within 30 days; or Treatment on at least one occasion with regimen of continuing treatment. 29 C.F.R

16 Treatment of Substance Abuse Substance abuse may be serious health condition if conditions are met FMLA leave does not cover absences resulting from substance use Leave may only be taken for treatment by a health care provider Employee may take leave to care for a covered family member who is receiving treatment for substance abuse 29 C.F.R

17 Treatment of Substance Abuse Exercising FMLA rights does not insulate employee from adverse action under policy that provides for termination for substance abuse under certain circumstances, provided: Policy is applied in non-discriminatory manner; and Policy is communicated to all employees 29 C.F.R

18 FMLA Do s Obtain medical certification to support entitlement to FMLA leave Require employee to provide fitness-for-duty certification prior to returning to work Provide all notices required by FMLA within the deadlines set forth in the regulations

19 Scheduling FMLA Leave Full/Continuous Leave Leave that is full-time/continuous (e.g., 12 consecutive weeks) Reduced Schedule Leave Leave that reduces the number of hours an employee works daily or weekly (e.g., from fulltime to part-time) Intermittent Leave Leave taken periodically and intermittently One week here and there A few days here and there One day here and there A few hours here and there

20 ADA & FMLA Interaction ADA may require extending leave after 12 weeks of FMLA leave are exhausted Under the ADA, leave may not be the most appropriate accommodation Think broadly & creatively and participate in interactive process Employee is entitled to leave under the FMLA; under the ADA, employer can consider undue hardship

21 Best Practices Implement and enforce a policy prohibiting alcohol use or illegal drug use at work; and working or reporting to work under the influence Consider implementing a drug testing program, consistent with state and/or federal law Train supervisors to recognize and respond to signs of drug or alcohol use

22 Best Practices Train supervisors to respond to coworker questions about employees on leave or who are receiving reasonable accommodations Consider last chance agreements for employees who have completed treatment for substance abuse Consistently enforce attendance and other policies governing employee conduct

23 Case Study A supervisor is Facebook friends with one of his reports who often posts status updates about drinking. The supervisor has suspected for a couple years that the employee has a drinking problem. The employee has had excessive unplanned absences and tardiness for the last couple of months, and it s gotten to the point where corrective action is necessary. We plan to give him a written warning. When we deliver the warning, do we need to ask this employee whether he has a drinking problem?

24 Case Study A manager noticed an employee appeared to be having trouble staying awake and called the employee into her office. The employee s speech was slurred, and he could not sit still. We concluded the employee was under the influence of some substance. The employee was sent home and required to report for a drug test the next day. The employee tested positive for opiates but admitted he did not have a valid prescription. He told us he had seen his doctor and was checking himself into an inpatient substance abuse program the next day. We d like to terminate this employee for violating our policy that prohibits reporting to work or working under the influence of drugs or alcohol. Can we?

25 Case Study One of our employees confided in her supervisor that she was an alcoholic. Can we ask this employee to submit to random testing to make sure she s not reporting to work under the influence in violation of our policy?

26 Questions? Thank you! Nicole Haaning Benjamin Weeks

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