Magazine article Occupational Hazards

ADA, Alcohol Use and Safety

Magazine article Occupational Hazards

ADA, Alcohol Use and Safety

Article excerpt

Alcoholism is a protected condition under the Americans with Disabilities Act, but that doesn't mean your employees have to be exposed to a safety risk. Here are some steps employers can take to stay legal - and safe.

The Americans with Disabilities Act (ADA) puts safety directors and employers in a "difficult situation," believes Mark A. de Bernardo, executive director, The Institute for a Drug-Free Workplace. That's because alcoholism is a protected condition under ADA, which specifically forbids an employer to discriminate against an employee or a job applicant based on a disability. As a result, de Bernardo warns, employers may be required to put a worker "back in a safety-sensitive job who has a history of substance abuse."

Some employers have begun to ask themselves if safety, ADA and alcoholism can co-exist in the workplace. Although no case law has been recorded on the issue yet, many experts agree that under ADA, employees who successfully complete rehabilitation programs and who are still employed with the same company have legal grounds if they demand to be returned to their previous or similar jobs. The only exceptions are if the employee has proven himself a safety risk or unable to perform the job duties.

"ADA's a blessing for people who have an alcoholism problem. It makes it harder to fire them," admitted Jim Oher, president of Jim Oher & Associates, Chappaqua, N.Y., a company which administers employee assistance programs (EAPs).

While de Bernardo calls ADA a positive concept, he cautions that provisions of the act can make compliance difficult for employers and put employees and the public in possible jeopardy. Situations involving employees who have alcohol abuse problems can be very sensitive, he noted, and should be handled with extreme care.

Though handling an obvious alcohol abuse problem can be difficult, ignoring it is even more perilous. Working under the influence of alcohol is not protected under ADA. Chicago attorney William Judge warned that an employer can be held "absolutely" liable if an intoxicated employee injures himself, another employee or an innocent bystander while on the job, especially if the employer was aware that he was working under the influence of alcohol or drugs.

"At the absolute minimum, you can be sued," said Judge. "If you have to go to court, you've already lost. The question is, what steps could you have taken to avoid that injury?"

While there is a certain moral obligation to assist troubled or ill employees, the safety of other employees might be jeopardized in the process. A possible "escape route" from the ADA requirements is that employers are expected to make "reasonable" accommodations for employees with a disabling condition or illness.

"You do not have to accommodate an employee with performance problems or who is prevented by his illness from meeting the basic job requirements. You do not have to accommodate someone who poses a safety risk," said Jim Grimm, area manager for Employee Assistance Associates Inc., Chicago, which handles EAP programs for companies in a five-state region.

An Action Plan

The minute you suspect an employee is working under the influence of alcohol, experts counsel, ask him to leave and make sure he gets home safely. Document the employee's behavior and symptoms and meet with him the following day. Ask him about his understanding of the situation: does he know why he was sent home?

One caution: "Supervisors are there to document, not diagnose. I tell my clients to leave that to the experts. It's not their job to tell an employee to get help or to tell him he was intoxicated," said Bruce S. Wilkinson, CSP, president, Workplace Consultants Inc., Gretna, La.

The employee might admit he has a problem and ask for advice on where to turn for help. Refer him to a professional in your EAP program or the community who is knowledgeable about the use and abuse of drugs or alcohol. …

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