Managing Employees Who Are Dealing With Addiction or Depression
QUESTION FROM: Keith in MD
“I’m needing some advice. I have an employee who checked herself into a rehab due to alcohol about a week ago. She has been working towards weaning herself complete off but admitted to not having a day of sobriety in over 10 years. She suffers from depression, anxiety and I guess alcoholism.
We have had conversations about trying to help her because I felt she was also trying to help herself as of late since she came out and told me.
I was excited to hear that she made the decision to seek help and I told her that I would take care of her paychecks till she got back so she didn’t have that added stress.
Here is where the problem lies... she came back to work on Thursday and the medication has almost made her a zombie. I don’t feel she was able to do the job anymore or if it’s even safe for her to be here.
The staff although they love her and want her to do well for herself have expressed the stress of carrying her load. I’m concerned for her sobriety and depressive state with the conversation I feel I may need to have.
I don’t really have a position that would give her the hours she had previously so would need to hire a replacement and cut her hours, but even at that point I don’t know if her customer service due to her drowsy state is what I want on the cash register.
Please give me advice.”
HH ANSWER:
TALK TO A LAWYER - PLEASE!
Do you have a drug and alcohol policy (or clause within your handbook) that dictates standard procedure for dealing with either or both? Do you have a clause that refers to illness / sick leave? Both are crucial to have in place not only for your staff - but to remind yourself that if you should feel overwhelmed or ill- help is available...and reaching out to a medical professional is the smartest thing you can do.
“The U.S. Department of Labor (DOL) recommends that all employers have a written drug-free workplace policy that is shared with all employees and clearly outlines expectations regarding alcohol and drug use.
In most instances, employers have various options for dealing with employees who have alcohol or drug problems. For some employers, however, there may be specific requirements, such as the terms of collective bargaining agreements or the U.S. Department of Transportation's rules for employees in safety-sensitive positions. See What are the requirements for drug testing commercial vehicle operators and employees who drive as part of the job?
In addition, employers that do more than $100,000 of business with the federal government or obtain federal grants in any amount are required to comply with the Drug-Free Workplace Act. At a minimum, these employers must have a drug awareness program. The act's specific requirements include:
Publishing a statement to notify employees that it is unlawful to manufacture, distribute, dispense, possess or use a controlled substance and that such action is prohibited in the workplace. The statement must include information to advise employees that violations will have consequences.
Requiring employees to notify the organization of any criminal drug convictions while employed at the company. The organization must then notify the federal government of such violations.
Certifying to the federal government that the organization has complied with the law.
See Drug and Alcohol Policy.”
Alcoholism and Depression are diseases and although I’m not a lawyer (or ever was) I’m fairly certain that you can NOT term someone for having a disease...especially if they’ve told you of their condition and the fact that they are getting / seeking treatment.
Replace the words “alcoholism” and “depression” with “diabetes” and “cancer” and ask yourself what you’d do.
After consulting with a lawyer - I’d give them the time they need to get treatment, cover their shifts / hire additional staff if necessary, check out Title I of the ADA guidelines / laws and hold their job for them until they are better and can perform the duties required for their job.
Additionally, there are many confidential support resources provided by national organizations like NAMI:
https://www.nami.org/Find-Support/NAMI-HelpLine/Top-HelpLine-Resources
and
The talkspace app:
https://www.talkspace.com/michael
or
StartYourRecovery.org
If you or one of your employees are feeling overwhelmed, unable to do their job or seem to pose a risk to themselves or others (for any reason…especially if due to being under the influence of anything legal, illegal, prescribed or not) a doctor’s office or home is a far better place to be.
“Title I of the ADA protects qualified individuals with disabilities from employment discrimination. According to the EEOC Technical Assistance Manual: Title I of the ADA, "A person who currently uses alcohol is not automatically denied protection simply because of the alcohol use. An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not 'qualified.' "2 See Jury in EEOC Suit Says Old Dominion Freight Line Must Pay Former Driver $119,612 for Disability Bias and Drunk at Work: What HR Can Do About Employees Drinking on the Job.
Current illegal drug use is never protected under the ADA, but recovering addicts are protected. According to the EEOC's Technical Assistance Manual, "Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction."3 However, a drug test that shows that the employee is using an illegal substance qualifies as "using drugs illegally" and bars the employee from ADA protections. See Are employees undergoing treatment for drug and alcohol addictions covered under the ADA?
The ADA provides that an employer may prohibit the use of drugs and alcohol in the workplace and require that employees not be under the influence of alcohol or drugs while at work.”
As you navigate your way through this, please also consider taking a look at the HH article titled: “Emergency Contracts & Mental Health” under LABOR: hospitalityhelpline.com/labor/2018/6/27/emergency-contacts-mental-health
Looking forward to both of you weathering this as well as possible.
Good Luck and let me know how it goes,
Josh