What should you do if you believe one of your employees is under the influence at work? It may come as a surprise that you do not have the unfettered right to treat employees with alcohol problems in any manner you see fit.

That's because the federal Americans with Disabilities Act (ADA) and similar state statutes consider alcoholism to be a protected disability. In other words, if you fire someone because you know or suspect he/she is an alcoholic, you could be walking yourself into an ADA claim.

Moreover, many employers lump drug and alcohol testing into the same category, but they are significantly different under the ADA. Drug tests are specifically excluded from the ADA's restrictions on medical testing, but alcohol testing is considered to be a medical examination. Thus, the ADA's limitations on medical tests of employees apply to alcohol testing but not to drug testing.

The good news is there are a few rules for you to follow to make sure you stay out of hot water in a situation involving employee alcohol use. Here are five guidelines for dealing with employee alcohol abuse:

1. Prohibit alcohol from the workplace.

Maybe this guideline seems like a no-brainer, but the ADA permits businesses to bar the use or possession of alcohol in the workplace, which can include the employer's vehicles. It doesn't matter if the employee claims his alcoholism causes him to display bad judgment and bring the bottle to work. You can always lay down the law (consistently) in this regard.

2. Hold alcoholics to the same standards as all other employees.

The ADA makes clear that an employer can draw a line in the sand when it comes to employee conduct in the face of alcohol abuse.

Even the Equal Employment Opportunity Commission (EEOC) recognizes poor job performance or unsatisfactory behavior — such as absenteeism, tardiness, insubordination or on-the-job accidents — related to an employee's alcoholism need not be tolerated if similar performance or conduct would not be acceptable for other employees.

In addressing how employers should apply performance and conduct standards to disabled employees, the EEOC points out that employers who consistently enforce their rules can do so even if an alcoholic employee claims the reason for the rules violation was the result of drinking. However, those employers who maintain a lax attitude about certain rules but then crack down when an alcoholic worker breaks those rules will face potential ADA liability.

3. Steer a worker toward an Employee Assistance Program.

The EEOC provides you with the option of referring an employee you suspect has a drinking problem to your EAP for assistance.

This is certainly not required, and the EEOC clearly states that you can respond to a performance or conduct issue by walking down the disciplinary path instead. However, if you want to help your employee and believe rehabilitation might work to your mutual advantage with an employee, you can offer the employee the option of going the EAP route.

Some employers may be wary of taking the first step in such a situation for fear they might end up being found to have "regarded" the employee as disabled by making an EAP suggestion. However, once the ADA Amendments Act was passed in 2008, the bar to prove disability or "regarded as" disability became incredibly low. In other words, your employee will often be able to prove "disability" no matter your actions, so this issue should not be your primary concern.

As long as you can show through objective, documented information that the employee appeared to be under the influence of alcohol, and you are not acting solely based on speculation or innuendo, you are putting yourself in the best possible position. Further, you could also refer the employee to an EAP without concluding why the employee is acting erratically; just make sure to document your decision-making process, relevant facts and your actions.

4. Offer the employee a conditional last-chance agreement.

Another option is requiring the employee to sign a last-chance agreement once caught violating your policies. Again, the EEOC makes clear this is not a requirement but an option.

Generally, under such an agreement, you agree not to terminate the worker in exchange for an employee's agreement to receive substance abuse treatment, refrain from further alcohol use, follow your rules of conduct and standards of performance, and avoid further workplace problems. In such an agreement, you should not "prescribe" a particular treatment, care provider or rehabilitation program.

A violation of such an agreement usually warrants termination because the employee failed to meet the conditions for continued employment. Your employment counsel can help you draft an ADA-compliant last chance agreement.

5. Fire the employee.

As noted above, you can impose the same discipline that you would for any employee who fails to meet your standards or who violates a consistently-applied conduct rule. Even if an employee raises an unknown alcohol problem while you are about to terminate, you can still proceed with the action if it would have also been imposed on a nonalcoholic employee under similar circumstances.

However, if you intend to apply some lesser form of discipline, and the employee first raises alcoholism at that time, you should consider reasonable accommodations (after imposing the lesser form of discipline).

If the employee mentions the alcoholism but makes no overt request for accommodation, you should ask if the employee believes an accommodation would prevent further problems with performance or conduct. If the response is "yes," or if the employee raises it of his own accord during the disciplinary meeting, you should begin an individualized "interactive process."

This process will help determine if an accommodation is needed to correct the problem. You can ask questions of the employee and of his healthcare provider (through the employee) about the connection between the alcoholism and the performance or conduct problem. You can seek the employee's input on what accommodations may be needed.

A common reasonable accommodation in these scenarios is a modified work schedule to permit the employee to attend an ongoing self-help program, but the ultimate choice rests with you so long as you believe the proposed accommodation is designed to succeed.

Conclusion

This article is intended to provide general guidelines to help employers deal with alcohol abuse by employees. While it covers a common employment law situation, it is not intended to be and should not be construed as legal advice for any particular fact situation.