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On-the-Road Heavy Drinkers Jeopardize Employers’ Reputation
 

By Allen Smith  5/20/2014

Alcoholism may be easy for employees to conceal during their usual 9-to-5 days. But it can rear its ugly head when an employee is on business travel, embarrassing an employer, as seemed to be the case with a Secret Service employee who passed out drunk on assignment in the Netherlands, and it can result in termination if the circumstances warrant.

Deciding how to discipline an employee for overindulging on the road isn’t always clear, particularly if clients were overindulging as well.

However, Nancy Delogu, an attorney in Littler’s Washington, D.C., office, said, “There are often issues related to overindulgence that make this an easier decision in many cases. One employee got drunk and was found sitting on the sidewalk outside her hotel bad-mouthing the company. Some of her comments were directed to customers.”

Another employee got so drunk that she missed her flight home.

“I write alcohol-use policies to say that if alcohol use is authorized in connection with a work-related event, the employee who chooses to drink is expected to exercise good judgment and to refrain from becoming intoxicated or impaired,” Delogu said. “That should take care of any ‘alcohol made me do it’ defenses.”

If such policies are in place, “you can always discipline someone for violating your work rules. But if you decide to discipline short of termination, you must also follow the Americans with Disabilities Act (ADA),” she noted. Which may mean time off for alcoholism treatment.

Overindulging on the job is an issue that’s “often kept sub rosa for higher-ups,” said Burton Fishman, an attorney with FortneyScott in Washington, D.C. “I advocate zero tolerance, caution about TGIF wine tastings, and recognize that America’s drug of choice is alcohol and always has been (remember the Whiskey Rebellion?), and that alcohol is the lubricant of most business meetings. However, companies can have policies focusing on unbecoming conduct for any reason—blowing your stack in a rage as much as sliding under the table drunk. Both are unprofessional, both potentially job-ending.”

If the employee who gets drunk or even passes out on a work trip is a star employee, David Fram, director of ADA and Equal Employment Opportunity Services at the Denver-based National Employment Law Institute, said the employer should take exactly the same disciplinary actions it would with any other employee. Otherwise, the employer is setting itself up for a disparate treatment claim, he said.

Individualized Determination

“The greater the degree the inebriated employee is involved in client contact, the greater the inappropriate nature of the conduct,” said Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. “Passing out while drinking with clients certainly evidences sufficient inappropriate conduct that stronger disciplinary action, including termination, might be warranted.”

But he added that, “as with any circumstance, the facts of the situation will be important. For example, if the clients were participating with the employee in excess drinking and the clients encouraged the employee to consume greater and greater amounts of alcohol, this might be a situation where the employee might be at lesser fault than if, for example, the clients were drinking moderately, but the employee (on an expense account) overindulged.”

“An employer should be able to legally terminate an employee for passing out from substance abuse on a work trip—assuming the employee is at will,” Mook noted. “There need be no policies or practice in place, as a legal matter, for the employer to do so; however, it certainly is a best practice to have such policies informing employees that when engaged in work-related travel, they are to conduct themselves in a professional fashion as representatives of the employer,” he added. “An employer also may put into place a policy that would prohibit employees from using any type of unlawful substances while engaged in work-related travel, as well as in the workplace.”

“Issues involving the abuse of alcohol arise quite frequently when employees are on business travel,” Mook said. “There are much fewer incidents with respect to employee use of illegal drugs. Generally, employers will follow a zero-tolerance policy where the employee illegally uses drugs.”

Progressive Discipline

But with excessive consumption of alcohol, “there is a wider variation and tolerance,” Mook added. “Where alcohol is involved, the focus is upon the inappropriate and unprofessional nature of the conduct. Clearly, if the inappropriate conduct is detrimental to client relationships (or involves sexual harassment or other improprieties), an employer will have little tolerance for the conduct and mete out severe discipline for the employee.”

If clients aren’t affected though, employers “generally will deal with the issue by warning the employee about the need for maintaining professionalism even on out-of-the-office work travel. However, if the conduct continues, generally employers will impose greater discipline, including termination.”

If the employee requests leave to go into rehab to treat alcoholism (that is, if the employee claims a bender resulted from alcoholism), under the Family and Medical Leave Act and/or ADA, an employer may opt to grant that time off and terminate the employee after he or she has returned from the leave, if the misbehavior prior to the rehab was severe enough to merit discharge. “That way, the employee is provided with any leave required under the law, but the employer retains the ultimate decision as to whether the employee should remain employed,” Mook said.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

 

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