Alcoholism treatment & legal protection

Tapatio · October 2003

We have an senior management employee who has openly communicated to one of our executives that he has a drinking problem; some of us were aware of this even prior to his own acceptance of this problem. This problem has began to affect his work performance, since he has missed work a few times, and has come up with some lame excuses, which we seriously question. Our executive would like to refer this individual, with his concurrence, to a 30 day in-patient alcoholism treatment program at a local hospital, essentially fully paid by the company. And, in addition to that, he has asked me to draft an agreement in which the employee would commit himself to succesfully completing the program, and to acknowledge that his failure to do so could be grounds for disciplinary action, up to an including termination. I feel very uncomfortable about the agreement, since that I feel that we would be in violation of the ADA if we were to terminate this individual, specially for not completing the program.

I would like to ellicit this forum's opinion. Has anyone ever faced a similar situation, and how was it handled? Is a written agreement something to even consider, or does it further place the company in jeopardy? What other areas are we venturing into, such as violation of the individual's privacy rights, HIPAA, etc. I feel very uncomofortable about getting involved in this situation.

Balloonman · October 2003

Or you could let him violate policies to the point you term him. Look at it this way he disclosed the problem to you. I think it is great that your company is willing to pay for him to do what needs to be done trying to take care of this problem. Or you can wait till he screws up and require it and the signing of a last chance agreement to save his job. I have done 3 of these I am 1 for 3. I was uncomfortable with the first one also...........I asked an old mentor, how long can I make the agreement for as it included random testing. He answer was as long as you like. If they want to keep their job they will sign it. If they want help you are giving them a chance.
Make it clear in the last chance they are no longer allowed to drink. Any drinking will result in discipline up to and including termination. My one who had only a 1 year long agreement got a dui 10 months after signing, I termed him. All agreements now are 3 years long.
My $0.02 worth.
DJ The Balloonman

SMace · October 2003

Similar to Baloonman, we to have a referral process. I'll fax you a copy of our agreement if you give me your fax. It came from our EAP. That is who handles the treatment guidelines, duration of treatment, etc. One thing I would caution against is the one strike and your out. After the one strike they are disabled and covered by ADA, so you don't want to term without a reasonable accom. look if warranted. Now if they come in drunk a week after the finish the program and you policies and precendent warrant termination, you should terminate.

Leslie · October 2003

I was under the same situation, however the family did an intervention and the employee (also a supervisor) went into detox and rehab without a signed last chance agreement. I wish I'd had one - she started having attendance issues and we could have termed based on that with a last chance. However, without one, she was nowhere near the end of our progressive discipline for attendance. She ended up terming out of here for a reasonable suspicion positive. A much worse term - but maybe one that will get her back on the program.

Tapatio · October 2003

Dear SMace:

I thank you for your offer, and would appreciate it if you would please fax me a copy of your agreement. You may send it to my fax number, (949) 598-1627.

Thanks a lot.

Tapatio, CA

Shadowfax · October 2003

I expect to get a lot of flak for this but:::current use of alcohol is not a disability. A referral to EAP is acknowledgement of disability. Focus on performance w/o regard to reasons for. If absent warn, w/last chance if appropriate. If it happens again..discharge. If you still want to EAP, and if he asks for it - not you - then by all means do it with an agreement and make it easy on the company to pull the plug on e/ee,because you will want to at some point sooner or later! Yeah, I know, rotten attitude. Lots of experience in this area - all bad. Some of best e/ees ever were 'recovered' alcoholics. The 'recovering' ones were definitely not worth the company's time and expense of dealing with. Get out while the performance issues are ripe and no disability established. Sorry.

SMace · October 2003

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A referral to an EAP is not an acknowledgement of a disabilty automatically. Someone can be referred and not be disabled and I can't figure out why that would be regarding someone as disabled, but maybe someone can enlighten me (hatchetman, where are you?) Anyway they guy tells a senoir exec. he has a drinking problem and you advise to ignore his cry for help and focus on his performance? In your company's culture that may work, not in mine. It may work in Tapatio's company culture, I don't know. If I was that exec. and the company handled it the way you suggest, I would have a hard time facing that guy as well as living with myself. Suppose the info gets out (if he thinks he got screwed over, believe me it will), are ee's going to be incented to come out and talk about issues that the company may have resources to help? Heck no, they are going to keep their mouth's shut and eventually get fired. Is that what you want for your ee's? I feel like we have a significant investment in our employees and I'm going to try within reason to help them when they cry out for help. There are many recovering alcoholics and substance abusers that are very good and productive employees.

TN HR · October 2003

"..Some of best e/ees ever were 'recovered' alcoholics. The 'recovering' ones were definitely not worth the company's time and expense of dealing with. Get out while the performance issues are ripe and no disability established. Sorry."

Shadowfax,

I'm afraid your statement is way off base! First of all, anyone in the AA program will tell you that alcoholics are NEVER "recovered". Recovery is a continuous process of sobriety. To use the same argument you used, a "recovered" alcoholic would at one point have been "recovering", right? Surely he didn't get there overnight.

System · October 2003

Shadowfax, just a word of advice: Alcoholics are NEVER recovered and are always recovering. I know this through painful family experience. The minute an alcoholic regards themselves as recovered is the minute they pick up a drink.
Deez

sonny · October 2003

[font size="1" color="#FF0000"]LAST EDITED ON 10-09-03 AT 03:25PM (CST)[/font][p]Unless your executive is a addiction specialist or Dr. I have concerns that they are recommending treatment (30 day inpatient program)There are alternatives. Your plan is a little too paternalistic for my taste. In my opinion it is NOT the employers responsibilty to manage this. .it is the employees. That does not mean you can't be supportive. As noted, I would tend to focus on the performance issues. . I do support the use of, or consultation with an EAP if you have one.

Don D · October 2003

[font size="1" color="#FF0000"]LAST EDITED ON 10-09-03 AT 03:35PM (CST)[/font][p]A referral to the EAP is an acknowledgement of a disability? That's a new one on me too, and runs counter to every experience I've ever had with EAPs. The EAP we currently have even has a financial counseling arm. If I were to refer an employee to that, might he be disabled?

I see the executive's offer as a sincere one, although not necessarily the right one. I think a more appropriate offer would be to make the EAP referral and tell him that if the EAP assessment included a recommendation for the in-patient program, then the company will pay for the whole thing. That's a generous offer and goes much further than insurance typically goes.

I salute a company that wants to figure out ways to help employees rather than picking them off with a 22 rifle when they screw up.

SMace · October 2003

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Hey Don,
No response to the dreaded triangle question. If I'm wrong I would like to be righted. I look forward to your feedback.

SMace

edit:
by the way, I took my meds and boy did it help. x:D

Pork · October 2003

In my history, there should not be an executive plan and an "other's plan". Sick employees are sick employees regardless of their rank in a company. Alcoholics are all in the same boat, it just maybe levels of difference, but their addiction is the same. Get him into a program! The first step to recover is the self admittance of the problem and to ask for help, he has taken the first step now help him get to the next step and onto the proven 12 step process of recover. Jump up and help him with your FMLA to start, but do not treat him any different than you would your lowest ranking employee. He does not need your pity, only your hand to guide him through your system to the professional help that he so willingly deserves. If you don't know what to do call the nearest AAA or your company physician for the identification of a real starting point and place.

PORK,

I tie into "Dandy Don's" post because it reads right down the line as it normally does.

LindaS · October 2003

It appears from your post that you do not have and EAP because if you did, I would tell you to suggest the manager see the EAP counselor who will then make a determination what type of treatment this person needs.

The fact that this person has admitted a "problem" hopefully means that they are willing to get treatment but your mandating a 30-day inpatient treatment program probably isn't what you should be doing. My recommendation would be to set up an appointment with a qualified counselor (maybe your health insurance could recommend one) and have the counselor make the determination of the type of treatment. Once that has been decided on, you can go ahead and do the "last chance" type of agreement for the manager and make the determination what you feel is reasonable.

I have been in the situation but have we have an EAP that came into play early on and made the proper assessments of the employee. As for ADA remember that alcoholism is something that needs to be diagnosed and an employee telling you that he has a "drinking problem" doesn't necessarily make them an alcoholic, let someone qualified make that determination.

gillian2 · October 2003

Check out Labor Code 1025. Every private employer regularly employing 25 or more employees shall reasonable accomodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehab. program, provided that the reasonable accomodation does not impose an undue hardship on the employer. The next paragraph says that the employer can deal, as a performance issue, with someone who is a current user and because of that cannot do his or her job.

This person has approached you, therefore the duty to accomodate kicks in, but ends if he doesn't want to go to a program. You do not have to pay for it, just give time off. You can do more of course.

Shadowfax · October 2003

I said I'd get some flak. But I don't buy into all the 'culture' bs. Since when did the employer become responsible for all of e/ees problems. When you get right down to it, e/er doesn't give a rip why em/ee isn't there - if the work isn't done, timely, efficiently, properly, there soon won't be an em/er for anyone to work at. You might be able to sell alcoholism as an illness, but it sure isn't a disease, and just because our social engineering idiot legislators, who, for the most part never had to meet a payroll because they've spent their whole 'careers' sucking at the government hose, 'legislate' that employers should pay for and provide a mechanism to cure all of the employee's ills, even those the employees voluntarily bring on themselves, doesn't make it smart, doesn't make it resposible, doesn't make it right. Why should the emp/er be responsible for the problems of e/ees who eat, drink,smoke and spend themselves into trouble? The money spent on social programs for the small percentage of problem emp/ees is way out of proportion to their numbers, and I submit, to their value to the co. And, while those expenditures may actually help someone occasionally, who pays for it? The emp/er? Sure. But so do all the other employees, and so do all the people who buy the product, because that cost has to be covered by someone, and is it really fair that the 98% of emp/ees who come to work every day and do their job without handholding, or counselling, or cajoling, without ever needing a EAP and could give a good a hoot whether the co has a 'culture' or not, wouldn't recognize a 'culture' if it came up and whacked them in the face? I don't think all that social crap is cost effective, and worse, it is socially defective, it has contributed to an entire society where no one is responsible for themselves. If the government won't or can't take care of your problems, then make the employer, the school, or someone, anyone but the individual responsible. And what does the post - alcoholism and legal protection - tell us about how much time and money we spend trying to stay out of legal trouble, paying lawyers to lead us through the legal minefield of this set of social engineering and that set of social engineering requirments. Could we pay our responsible emp/ees better and compensate them more fairly if we, and ultimately they, didn't have the albatross of all these bs regs around our necks? I could go on...Sure, we've demonstrated we need labor laws to keep us honest. We need to be fair and nondiscriminatory or suffer some consequence. We need safety requirements. But I cannot and willnot be responsible for my neighbor's behavior, because I cannot control it even if I wanted too. And the law may make me pay for the behavior, but it will not make me responsible. It will only make the problem individual irresponsible, over and over again. Bring on the flak!

Don D · October 2003

[font size="1" color="#FF0000"]LAST EDITED ON 10-10-03 AT 07:41AM (CST)[/font][p]Damnation! A Less-Government, Accept-Responsibility, Stop-The-Social-Madness, Southern Conservative from MI instead of MS! I'm not gonna 'flak' you. I admire a person who expresses an opinion. But, can I challenge you to be a little less vague? x:-)

Balloonman · October 2003

Well I agree with Shadowfax's original post, and I have a lot of respect for someone who has dealt with the demons of addiction and conquered them. Yes it may always be an ongoing battle, but his distinction between recovered and recovering is accurate. Yes I realize that sometimes in takes a few attempts to overcome the demon, but sometimes losing the job cause you f*&ked up again might finally wake you up.
The last one I let go who failed to comply with his last chance agreement was upset, his wife was more upset...........it had been 10 months, why are you firing him. The agreement was still in place. She forgotten that 10 months earlier we were checking motels and searching for him afraid he might have hurt himself.
A last chance agreement is just that and should be titled that. LAST CHANCE AGREEMENT. Let the be a clear understanding what the consequences are and follow through on them.
My $0.02 worth.
DJ The Balloonman

System · October 2003

Again, there is no recovered alcoholic. Alcoholism is a disease and as much as you try and protest that shadowfax, the MEDICAL profession disagrees with you. Not the government, social programs or bleeding hearts.

Shadowfax · October 2003

Deez, I appreciate your point but I think we're jousting at semantics. My father in law was an alcoholic; my sister in law is one; at least one aunt is and another is suspect. My wife and I went to al anon to help us and mom cope when dad was alive. Fact is, we all know, whether we care to admit it or not, one who has been clean and sober for a few years has a better 'chance' of staying c $ s than one who is in detox for 1st time. Maybe not fair on a statistical basis, but fact nontheless. And, we all know, admit ot or not, that an e/ee with this problem is a tremendous drain on the co - not only financially but with moral and gossip time and every other thing we do at work. And, as someone has recently posted, we get on only the emp/ees prob and the probs it creates at work, but the family crisis as well. In my experience, there IS a difference between getting c & s and being c & s. Sorry! As for the medicals, if they can convince all of us something is a disease, more likely they'll be paid by ins. and medicad/re, and guess what, we all pay for that too in increased rates. Ya gotta love the system!

System · October 2003

I see your points shadowfax. I have had alot of personal experience with this issue. Some of the kindest, smart, lovely people fall victim to this "disease"
and it is so hard to watch.I don't think that people who are unable to stay sober are bad people. On the other hand you are right if they cannot and their work is affected in any way then they have to be let go.
I just hate the stigmatism that surrounds what I consider a disease.

SMace · October 2003

As someone who has pulled themselves up by their own bootstraps without employer or government assistance, I whole heartedly agree with your personal responsibility soapbaox. However, I would not let strong personal opinion sway your decisions in your role of HR. You should make decisions not based on how you feel about a situation, but what is best for the company. Every company has a culture whether they want one or not. Some "pick people off with a 22", some help till it hurts, some are somewhere in between. Every company small or big has a set of values and beliefs that they operate on whether they publish them or not. Generally they are guided by the decision makers. Shadowfax, that was a great post to wake up to this morning. It was better than coffee. Everyone have a great day!

Balloonman · October 2003

I prefer large caliber handguns at close range over picking them off with a .22 myself. x:D
DJ The Balloonman

Alcoholism treatment & legal protection

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