Courier with DWI Arrest and Conviction - Request Advice

franfields · January 2002

What are my options? He has been with us a couple of years and has been a reliable employee prior to this arrest and conviction. What is our obligation if his license is suspended so he can't perform the essential functions of his job? Is he protected under the ADA if he claims he is addicted to alcohol? Is he entitled to FMLA if he undergoes treatment? I am concerned about insurance ramifications as well but will check that out with our agent.

slewis · January 2002

I had this exact same situation happen and rather than let him go because as you say he was a good worker and has been with the company for a while. I told him I had to pull him off the road for the obvious reason that he has no license. However I offered him a warehouse position at the lower rate that a warehouse person would make and put the ball in his court, so to speak. He ended up accepting the offer because he could no longer perform the essential functions of the job he was originally hired for and what I offered was better than he would get going into a new company that he is not sure about starting pay, atmosphere, benefits, seniority, etc. If he had left it would have been a resignation.

Gillian · January 2002

You should probably get some legal advice as well, but my take is that your obligations are minimal. Without a license, this person can't do the essential functions of the job, even if there were some accomodation that would be appropriate. Accomodations create a situation where the person can do the job when they are made. FMLA only comes in if you retain this person in some other capacity. to my knowledge there is nothing in FMLA which expressly states that this would not fall under a "serious health condition". I think that it would.

Mutagawa · January 2002

Since having a license is a requirement of the job, he cannot meet that requirement. If you have a position available that does not require driving, you could consider transferring him. Depending upon your company policy on controlled substances, you may want to subject him to random screenings. Also, you can refer him to an EAP program if your company offers one. You wouldn't need to make any ADA accommodations unless he was in recovery.

franfields · January 2002

What would be the ADA accomodations if he were in recovery?

Margaret Morford · January 2002

Adjusting his schedule so that he could attend his follow up meetings to remain in recovery. Also, making sure that you don't discriminate against him because he is in recovery. For example, not promoting him because you are scared he will fall off the wagon.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Cathie · January 2002

This was a little different but we had an employee whose license (not his driver's license, the inspector's license he needed to perform his duties) was suspended for a year. We brought him in off the road and had him process claims on the machines he would normally be inspecting. When his license was restored, we put him back in his original position. Don't know if that helps at all.

Gar · January 2002

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The sixty-four thousand dollar question is: Is the courier in recovery? From your post, he claims to be "addicted" to alcohol. Being "addicted" does not give him ADA protection. He must be in recovery. If he isn't, he has no such protection. And if he isn't in recovery, becareful not to treat him as being disabled. I might add that being in recovery only a few days doesn't necessicarily give him ADA protection either.

Regarding FMLA, chances are he could fall under that statute's protection for intermittent time-off to attend fellowship meetings. Get a medical certification from his doctor. If he is granted the time-off on an intermittent basis, you can require him to schedule his meetings so as not to disrupt the performance of his job.

Good luck!

franfields · January 2002

We resolved the issue. We really spent time thinking about it but there was no other position to which we could move him and he could not perform the essential functions of his positions. His license was suspended and our insurance wouldn't cover him, even when he would again be permitted to drive.

With deep regret, we had to let him go but gave him severance according to our policy which is pretty generous, 2 weeks for every year of service.

Thanks to everyone for their advise and counsel.

Courier with DWI Arrest and Conviction - Request Advice

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