Magazine article HRMagazine

Elephant in the Living Room

Magazine article HRMagazine

Elephant in the Living Room

Article excerpt

Alcoholic employees present a range of legal risks.

Al has been employed by his company for 15 years. For the first 12 years, he was a superstar. He worked hard and consistently exceeded performance expectations. Clients loved him. Employees admired him.

During the past three years, Al's performance has steadily declined in quality and quantity. And he's had a number of exchanges with clients and employees that have been anything but positive.

Al talks a lot about his three closest friends: Jack Daniels, Jim Beam and Old Grand- Dad. On occasion, colleagues smell what they believe to be alcohol on his breath.

What do you do? Do you focus only on the declining performance? Or, do you address the elephant in the living room-Al likely has an alcohol problem?

Disability Defined

While the Americans with Disabilities Act (ADA) was designed to protect applicants and employees with disabilities from discrimination, one unintended adverse consequence is that it also makes it legally riskier for employers to deal directly with physical or mental disabilities that may be the cause of performance or behavioral issues. Enacted in 1990, the ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. An individual may be protected if he or she has a present disability, has a record of a past disability, or is regarded as having a disability.

In a number of decisions, the U.S. Supreme Court construed the definition of disability narrowly. In response, in 2008, Congress passed and President George W. Bush signed the Americans with Disabilities Act Amendments Act, which was effective Jan. 1, 2009. Although the amendments did not change the definition of a disability, they did include provisions that compel a broader interpretation of the definition. Indeed, it now seems that almost everyone is disabled.

Critical to the "regarded as" disability prong, the amendments provide that an individual may be regarded as having a disability if he or she is subject to an adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity. This definition is so broad that any discussion by an employer of an employee's physical or mental condition may serve as the predicate for a perceived disability claim, discussed in detail below.

In 2010, the U.S. Equal Employment Opportunity Commission (EEOC) published regulations under the amendments. The regulations take the expansive provisions of the amendments further.

For example, the regulations provide that:

* The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination occurred, not whether the individual meets the definition of disability.

* While individual assessment is still required as to whether an individual has a disability, whether an impairment "substantially limits" a major life activity "should not demand extensive analysis."

* "Substantially limits" shall be interpreted and applied to require a functional limitation lower than the standard applied prior to the ADA Amendments Act. Curiously, while the commission states that the standard is lower, it does not state what the standard is.

The regulations then include examples of conditions that "in virtually all cases" will meet the definition of disability. The broad list includes physical disabilities, such as cancer and HIV, as well as mental disabilities, such as bipolar disorder and major depression.

Substance Abuse

The regulations are conspicuously silent on alcohol and drug dependency. However, the law preceding the amendments to the ADA with regard to alcohol and drug abuse remains unchanged. The rules with regard to substance abuse generally are:

* Alcoholism is usually a disability under the ADA. …

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