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Sobering Thought: Do Your Alcohol Policies Walk the Legal Line?

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case in pointDo you think you may have a few alcoholic employees at work? Does the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA) require you to accommodate their alcoholism? Do you have the right policies in place to terminate someone who shows up to work intoxicated?

This new court ruling shows that having the right blend of policies in your employee handbook will help you lawfully terminate an employee who comes to work under the influence without violating the ADA or FMLA …

Case in Point: George Sechler worked as a manager for a construction company in Texas and had a history of alcohol dependence. For 10 years, Sechler remained sober, receiving pay raises, promotions and eventually became the district general manager. Then Sechler began drinking again after his wife died.

As his drinking increased, his work performance and attendance fell. He requested and was granted leave to receive out-patient alcohol treatment for over a month. Upon returning to work, he signed a return-to-work agreement that required him to attend weekly Alcoholics Anonymous meetings and submit to at-will drug and alcohol tests.

All seemed fine. Until one day when he relapsed and showed up to work apparently intoxicated. 

His employer requested Sechler submit to a drug and alcohol test. He agreed to do so but only if he could drive himself to the testing center. The company refused because it suspected that he was under the influence and could be a danger to himself and the public. He was immediately fired. (The employee handbook included a multi-step disciplinary policy that allowed immediate termination for any employee who refused to participate in a drug and alcohol test.)

Sechler sued under the ADA for failure to accommodate. He also filed an FMLA claim, saying he was retaliated against for exercising his rights for leave to get treatment. Sechler further claimed the company failed to abide by its own step-by-step disciplinary policy.

The ruling: The court sided with the company, saying the quick-trigger firing was proper. Sechler was terminated for violating his return-to-work agreement, the court said. Plus, the company didn’t have to take each progressive disciplinary step because its policy allows for immediate termination if an employee refused to participate in drug and alcohol testing.

There was one big twist in this case. The court let the employee’s FMLA interference claim proceed to a jury trial because the company failed to make his leave as FMLA leave or notify him of his leave rights under that law. (Sechler v. Modular Space Corp., S.D. Tex., 4/18/12)

3 Lessons Learned … Without Going to Court

1. Have a drug- and alcohol-free workplace policy. Make sure it clearly states that failure to submit to a test results in automatic termination.

2. Provide return-to-work agreements. Ditto above. Make sure it clearly states the employee must follow the company’s drug and alcohol-free workplace policy and submit to at-will drug and alcohol tests.

3. Document FMLA leave and tell employees of their rights. In this case, the court said the employer interfered with the employee’s FMLA rights when it failed to explain to him his rights as required by the statute. Sechler claimed that had his employer told him he could have taken additional leave time off for treatment he would have. In turn, the treatment may have prevented him from relapsing.

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