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“I have an employee that was witnessed using alcohol during working hours. He was counseled approximately two weeks ago and advised that this was unacceptable behavior that could result in termination. Behavior improved for a few weeks, but now there is reasonable suspicion this employee is drinking alcohol again on the job. A decision to terminate might be forthcoming; however, before such decision is made, we’re requesting support on the proper way to handle this situation. We do have a Drug Free Workplace Policy and have the ability to send the employee for testing.”

Answer: The ADA specifically provides that an employer may prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol. The Act permits employers to ensure that the workplace is free from the use of alcohol and does not interfere with employers’ programs to combat the use of alcohol. The general rule is that you can fire an employee for active drug or alcohol use on the job. While current drinking is not protected activity, alcoholism is, and it sounds to me as if this worker might be an alcoholic. Most people won’t put their job at risk once warned to stop…unless they can’t. Here’s the JAN website info on this: http://askjan.org/media/alcohol.html.

Does an employer have to allow use of alcohol at work as an accommodation?

No. The ADA specifically provides that an employer may prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol. The Act permits employers to ensure that the workplace is free from the use of alcohol and does not interfere with employers’ programs to combat the use of alcohol (EEOC, 1992).

Are tests for alcohol use considered medical tests under ADA?

Yes. Blood, urine, and breath analyses to check for alcohol use are considered medical exams, and thus subject to ADA limitations. According to the Equal Employment Opportunity Commission (EEOC), an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity (EEOC, 2000).

If you reasonably believe that an employee is intoxicated on the job, you can and should have someone drive them to be tested. There’s really only one accommodation for alcoholism- stop drinking. Giving an alcoholic employee time to get their act together is one example of a possible accommodation. If you haven’t had this conversation yet, do so when the person is sober. If the employee has causes no harm to this point, termination for cause, might be a risky step without first considering the accommodation dialogue. Many companies have been sued for doing so. If the employee fails to sign up for and complete a detoxification program, you can then fire them. The ADA does not require that you tolerate a relapse or refusal to obtain help when given the appropriate accommodation.

Finally, if the employee has been a good worker and a good person, work with them. Maybe they’re going through a tough time – we all do now and then. However, if the employee is recalcitrant, belligerent or denies having a problem when you talk with them, then termination will be the best solution.

Cornell University has published an interesting report outlining employer concerns about: an aging workforce. Absence and Disability Management Practices for an Aging Workforce http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1320&context=edicollect As you can see by their chart below, there’s reason for concern! For example. somebody still working at 73 has twice the likelihood of becoming disabled as an employee 10 years younger.

According to the report, concerned employers are looking at seven ways to manage this exposure:

1. Flexibility
2. Maintaining and enhancing benefits
3. Wellness programming
4. Safety checks
5. Accommodation
6. Stay-at-work and return-to-work programs
7. Communication and recognition

If you have older employees. I encourage you to read the entire report. Most importantly, don’t let older employees play dinosaur on you. Keep them sharpening their saw no matter what their age.

“To those unwilling to learn I do not teach anything.” – Confucius

You could take this quote in two different ways. Literally one could surmise that Confucius simply refused to spend any time even making an effort with non-learners. I think, however, this quote has a less obvious meaning—there are teachers all around us, but only those willing to learn will gain any wisdom from them. One of the greatest frustrations whether you’re a leader, boss, parent, or expert, is to want to help people who really don’t care to be helped or to help teach people who really don’t care to learn. For the person intent on learning and improvement, this type of person is unfathomable. How could they actually think like that? Why don’t they want to be a constant learner? Why don’t they want to know more, so that, in turn they can do more? Don’t they have a sense of achievement or personal accomplishment? Don’t they want to be awesome!?

Napoleon Hill, author of Think and Grow Rich and similar books surmised that only 2% of people are really willing to do what it takes to be highly successful. My own personal experience tells me that the ratio may be closer to 10 to 20%, which still leaves 80 to 90% of people behind.

This Pareto Principle is alive and well in the workplace. There are few natural learners. There are few driven to be highly successful. Most people seek out a life of comfort and stability. What many of these people fail to realize is that only the mediocre are truly ever comfortable. They don’t understand that when you seek out comfort and stagnation you’re ready to die – because, basically, you’ve already done so.

Although the Bible instructs us to be our brother’s keeper, many resent the fact they are asked to do for others what those others won’t do for themselves. I think our best chance is to be the influence in their lives that they don’t have any place else. Perhaps, these people aren’t being motivated at home or by coworkers or by their friends and so on. You can be that shining light in their life. You can turn them on to learning and the fruits of success!

In the April 2013 issue of Corporate Counsel an article entitled It’s a Systemic World Out There discusses the EEOC’s pursuing large “systemic” cases. For example, in fiscal year 2011 they conducted 580 systemic investigations, filed 84 systemic lawsuits, and settled 35 systemic cases for total $9.6 million. Although your company might not be large enough to be on the EEOC’s radar screen, I can tell you that attorneys are also suing small to midsized companies on a class basis. An employee walks into a lawyer’s office because they didn’t receive their final paycheck, and before you know it they’re filing a class-action lawsuit against your company for missed overtime and meal periods. The article provided a few golden nuggets of advice:

1. When responding to an EEOC inquiry, don’t use the phrase “pursuant to our consistently applied policy.” This only invites a broader request for information.
2. Do not submit more information than is necessary.
3. Conduct your own statistical analysis before submitting data.
4. Do preventative analysis looking for adverse impacts in the hiring, promotion, or termination practices.
5. Validate pre-employment tests.
6. Conduct preventative compensation analysis periodically.
7. Cover all internal analysis with attorney-client privilege. This might be impossible in smaller organizations, but you can certainly retain outside counsel to instruct you on how to conduct such analysis and report back to them.
8. Listen to your employees. As I have always recommended, you should survey your employees, including use of the Employee Compliance Survey that can be found in HR That Works.
9. Invigorate that underutilized internal complaint system. Again, go one step further and ask if there’s a problem –don’t wait for them to tell you there is one.
10. Stay current with legal trends. This is one reason why HR That Works membership is so valuable.
11. Walk the talk. Are you sensitive to the potential for your practices to cause adverse impacts? Frankly in my experience I can tell you that some business owners could care less about whether a practice causes an adverse impact. All they care about is getting the best employees they can, damn the EEOC. Of course, few companies appreciate a risk until they’re hit with it.

Finally, the article points out how large corporations can gather the data requested by the EEOC easily because they have such large HRIS systems. However, most companies with less than 500 employees don’t have this data readily available, and t collecting it can be an over-burdensome process. This is one reason to make sure that you hire an attorney any time you receive a communication from the EEOC or another regulatory agency.

According to the Human Rights Campaign (HRC), 17 states and D.C. prohibit discrimination based on sexual orientation and gender identity. Those states are CA, CO, CT, DE, HI, IA, IL, MA, ME, MN, NJ, NM, NV, OR, RI, VT, and WA. As of December 2012, 57% of the Fortune 500 companies prohibit discrimination based on gender identity. The EEOC has also argued that gender identity discrimination is covered under Title VII.

HRC states that employees who have gone through gender transition have found disclosing their new identity to be a fearful process. What they look for more than anything else is respect and acceptance of their new identity. These employees also want to be able to use the restroom appropriate to their transgendered identity. Creating a separate restroom for them singles out their difference.

Although the number of transgendered employees is small, their transition can cause a great deal of attention, fear, ridicule, and prejudice. Some workers and managers won’t find it easy to accept the transgendered for religious, moral, and other grounds. However, the law requires employers to tolerate these differences, without harming their transgendered employees. As good people, we can accept these differences and move on with life.

For more information, go to the Human Rights Campaign website at www.HRC.org.

In managing today’s disability laws attorneys advise you to not fight whether something is in fact a disability, but simply to worry about whether you can reasonably accommodate limitations to meet productivity standards. A variety of accommodations might be available, depending on the circumstances. Here’s a list of possibilities. To learn more we encourage you to visit the Job Accommodation Network www.askjan.org

1. 1. Make existing facilities accessible. This might include access to break rooms, restrooms, training rooms, parking, furniture, equipment, etc.
2. Allow applicants or employees to bring assistive animals to work (of course under limited circumstances.)
3. Transfer employees to a more accessible worksite.
4. Transfer employees to a different job that they can, in fact, do. Note that you are not required to create a new job as an accommodation.
5. Provide assistive aids and services such as qualified readers or interpreters to an applicant or employee.
6. Restructure the job by the reallocating or redistributing nonessential job functions in a job with multiple responsibilities.
7. Provide a part-time or modified work schedule (not as a permanent solution, but only as an accommodation.)
8. Permit an alteration of when or how an essential function is performed (i.e. instead of being required to come to work at 9 they can come to work at 10).
9. Provide an adjustment to modifications of exams training materials or policies.
10. Allow an employee to work for from home (yes disabled employees may have a greater right to do so than your nondisabled ones).
11. Provide a paid or unpaid leave (no law requires you to offer an indefinite leave.)

Of course, by now you’ve been drilled to understand that what’s a reasonable accommodation versus an undue burden varies on a case-by-case basis. You’ll need to consider the cost and nature of the accommodation, and the overall financial resources of the company, the type of operations, geographic location and other factors. Take a look at the ADA forms and the checklists in HR That Works.