Employees drinking on the job.
Concern over employees drinking on the job is actually a common concern that I hear about. When I counsel employers, I always ask them what their feelings are towards drugs and alcohol. Obviously, the overwhelming majority of employers are not going to allow their employees to actively use illegal drugs while in the workplace. At least, I’ve never counseled anyone who wanted to discuss this with me. However, there are many jobs where alcohol consumption might be commonplace from time to time. For example, someone who works in a local brewery or catering business. There might be instances where an employer is permitting employees to drink casually on the job. The law recognizes this and treats illegal drug consumption very differently from alcohol use on the work site. As a side note, those who use illegal drugs have very little protection under the law.
My intention is not to comment on the propriety of drinking on the job. Rather, it is important for employers to consider the ramifications of allowing employees to do so. I believe it is important to have a written alcohol and drug policy in place for any job.
Alcoholics are protected under the ADA.
The Americans with Disabilities Act (ADA) now defines an alcoholic as a person with a disability. This means they are now a protected group under the ADA. You will first want to make sure the ADA applies to you. Assuming it does, this means that you cannot treat an alcoholic differently than others on the job or you might face litigation. Let’s assume that two employees are caught drinking on the job. Under these facts, the first employee is a suspected alcoholic and they are fired immediately after the incident (“Joe has a drinking problem!”). The second employee is not suspected to be an alcoholic and they are simply reprimanded. Under the ADA, you might face a potential suit because you have treated the perceived alcoholic differently and given them a more severe punishment than the non-alcoholic.
The ADA doesn’t mean you have to allow the alcoholic to drink on the job; far from it. There’s an easy solution to the fact pattern I just told you about. The law clearly allows you to have an alcohol policy in place if it is enforced uniformly for all employees. It would be even better to have a written alcohol policy which every employee signs. If you don’ t have one in place, it probably isn’t too late to execute a policy for all employees (dependent on your facts).
What if a drunk employee harms a third party?
As an employer, the other concern would be if your drunk employee harms someone else. Many a civil case has started with a drunk employee assaulting or harming someone else. Many a successful case has started with a drunk manager groping a more junior employee. Did the company turn their heads and ignore this potential or complaint? In addition, what if your drunk employee gets in a company vehicle and is in an accident?
Set parameters for alcohol use.
Once again, my intention in writing this article is not to be a stick in the mud. I know there are many offices (at successful large corporations) which have beer and wine in the company refrigerator. If you are going to allow alcohol in the workplace, you still need to monitor the usage and set parameters which are enforced across the board. Remember, all employees should be treated the same when it comes to alcohol consumption.
Ryan C. Young | Small Business Law | Richmond, Virginia