After downing at least nine beers during and after a company dinner, which followed a training program, Ray Zakaras spoke freely about his objections to the program and made rude comments to female co-workers.
Back at the office weeks later, Zakaras' supervisor asked whether he had a drinking problem and ordered him to go to the(EAP). The program is supposed to be voluntary and confidential, and the EAP manual says refusal to use it "is not in itself a cause for disciplinary action."
Zakaras' supervisor began an investigation of what happened at the training program and again asked Zakaras whether he was using the EAP and getting help for his drinking problem. And although none of the women filed sexual harassment complaints, the company demoted Zakaras and cut his pay 30 percent because of unacceptable behavior at the event.
When Zakaras sued, a court threw out all his claims except one: that the company may have violated the Americans with Disabilities Act (ADA) by demoting him because of a "perceived disability" of alcoholism. (Zakaras v. United Airlines Inc., No. 98 C 1316, N.D. Ill., 2000)
This is another example of "damned if you do, damned if you don't." The company was clearly trying to protect itself against the women's charges of a hostile work environment. But instead it got bitten by a technicality under disability law.
Advice: Don't jump to conclusions about whether employees are disabled. The ADA's definition of a protected employee includes those who are simply perceived by the employer as having a substantially limiting impairment. As always, document their performance, ask if they need an accommodation and make sure they're able to do the essential functions of the job.
Also, keep some distance from your EAP program. When an employee seems to have a problem, tell him, in writing, that the EAP is available but say that you are not inferring he actually has a problem. Do not use the worker's decision to skip the EAP as a reason to fire.
Finally, remember that alcoholism is a protected disability under the ADA, but it doesn't restrict your right to discipline or fire an alcoholic whose use of alcohol hurts his job performance to the extent that he can't do the essential functions of the job. Just don't discipline an alcoholic more severely than you would another worker with a similar performance or conduct problem.