Elephant in the Living Room

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. The same is true of dependency on prescription drugs, as long as the drugs were prescribed for the individual who has grown dependent on them.
• Current use of illegal drugs is not protected. There is a specific carve-out under the ADA for this. Illegal drugs include drugs such as heroin and prescribed drugs used by someone other than for whom they were prescribed.
• An individual who is in recovery from a problem with alcohol or with legal or illegal drugs is protected from discrimination under the ADA.
• However, even if an employee is disabled—for example, an alcoholic—an employer generally can take adverse action against an employee who:
• Uses or possesses alcohol or drugs in violation of the employer's policy.
• Is unfit for duty because of alcohol or drug use.
• Fails to meet the employer's expectations in terms of performance, conduct or attendance, even if the failure is because of substance abuse.
• Two more background points:
• Even if an individual is not protected by the ADA, he or she may be protected by the Family and Medical Leave Act (FMLA) or state law. For example, substance abuse is a serious health condition under the FMLA, and substance abuse is not limited to legal drugs.
• The distinction between current and prior illegal drug use is easy to articulate but often difficult to apply. According to the EEOC, "current drug use" means "that the illegal use of drugs occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an ongoing problem." It is not limited to use on that particular day or in recent weeks or days, but is instead determined on a case-by-case basis, according to the commission's A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act.

Statistics vary, but at least 7 percent of the U.S. adult population is estimated to suffer from alcoholism.

Three Approaches

With this background, let's return to Al.

While there are varying statistics, at least 7 percent of the U.S. adult population is estimated to suffer from alcoholism. In some professions or cultures, the number is considerably higher.

Moreover, according to the U.S. Department of Health and Human Services:

• 7 percent of U.S. workers drink during the workday, usually at lunch.
• 9 percent of U.S. workers have nursed a hangover while working.

For purposes of our discussion, we will assume that an alcohol problem is causing Al's declining performance and behavior.

Generally speaking, there are three approaches for dealing with Al. One option would be to wait until he reeks of alcohol and then test him under your reasonable-suspicion policy, providing that you have one. This hits the issue head-on.

There are, however, a couple of potential problems with this approach. For one thing, his poor performance will continue in the interim. For another, even if Al is tested, he may test negative. Sometimes an alcohol smell comes not from the breath but from the skin.

The second option would be to deal directly with the performance issue and only the performance issue. There are two clear benefits to this approach: You focus on what you are qualified to judge (whether the employee meets performance expectations), and you minimize your risk under the ADA. If you focus on the performance issue and stay away from the alcohol issue, Al will have a more difficult time alleging that an adverse action was taken because you perceived him to be disabled.

However, there is a potential problem with focusing only on performance and ignoring the alcohol use: Performance management will not always work.

"Because the sense of denial is so strong, it needs to be pierced," says Paul Hokemeyer, an addictions specialist with Caron Treatment Centers in Boca Raton, Fla. "Sometimes you can pierce the denial by focusing on performance; other times, a more direct approach is required."

The third option is to address the performance problems as well as the alcohol issue—to pierce the denial. There are three variations of the third option:

Simply mention the issue and offer to help. It's possible that just raising the issue may be enough, but it's unlikely—unless the individual is ready to receive help.

Mandate an evaluation. Here, you ask a reputable substance abuse professional whether there is an objective reason to question the employee's fitness for duty and then require an evaluation if the answer is in the affirmative.

This approach carries with it greater legal risk because you are requiring a medical evaluation under the ADA and you are potentially setting yourself up for a perceived disability claim, too. Do not expect a "Thank you for caring."

"People who suffer from addictions may react like a mother tiger protects her young. The individual may feel trapped and threatened and could respond with hostility and anger," Hokemeyer says.

Hire a substance abuse professional to conduct an intervention to encourage the employee to submit to the required evaluation. When conducting the intervention, the professional often elicits the help of family and friends.

This approach involves the greatest legal risk, but it has the greatest likelihood of being successful. Be sure to hire a skilled professional who knows how to respond to the denials and inevitable attacks.

Risk Selection

It is not illegal to address the alcohol use. It is simply a course of action that carries with it legal risk. But not taking the legal risk in some cases can carry with it other types of risks; in these cases, you are engaging in risk selection, not risk avoidance. In other words, simply doing nothing for Al is not risk-free. To the contrary, an employer may "buy" other risks.

There are the human and employee relations costs. The employee's alcohol problem is often recognized by everyone but the employee, and most people care about the deterioration they see.

Alcohol and other substance abusers often abuse more than alcohol. Sadly, but indefensibly, addicts sometimes abuse those who work for and with them.

There is a financial cost of ignoring the alcohol issue. "Alcoholism is an acidic cancer that will ultimately turn the performer's gold into lead," says Hokemeyer. "We also see performance not just recover but reach even higher benchmarks after the person enters a recovery program."

Finally, depending on the employee's job, if you focus solely on performance and avoid the alcohol use, you may be setting yourself up for a claim by a third party injured by the impaired employee's conduct. For example, in health care, would you rather have a wrongful death claim or a perceived disability claim? Pick your plaintiff.

Such discussion invariably leads to the question "How many elephants do you have in your corporate living room?"

Web Extras

SHRM web page: SHRM Online Legal Issues home page

SHRM article: Tackling Drugs in the Workplace (HR Magazine)

SHRM article: Putting Drug Screening to the Test (HR Magazine)

SHRM article: What to Do About Substance Abuse (HR Magazine)

SHRM article: The Marijuana Exception (HR Magazine)

SHRM web page: Drug Testing and Treatment Programs (HR Magazine)

Q&As: Americans with Disabilities Act (EEOC and U.S. Department of Justice)