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Brandon, Esq.
Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1783
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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When can my employer require an employee to enroll in an alcohol

Resolved Question:

When can my employer require an employee to enroll in an alcohol treatment plan and what kind of proof can they require
Submitted: 12 months ago.
Category: Employment Law
Expert:  Brandon, Esq. replied 12 months ago.

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

This gets into very dangerous territory.

Employment-LawExpert :

Are you you asking on behalf of the employer or the employee?

Customer:

Yes I am online

Customer:

Asking as an employee

Employment-LawExpert :

The short answer is that an employer can never require an employee to enroll in an alcohol treatment plan as part of their employment. However, an employer may be able to state that the person is suspended or fired until completion of such a plan.

Employment-LawExpert :

Individuals with alcoholism or who have past (not present) drug addiction may be individuals with disabilities according to the EEOC

Employment-LawExpert :

http://www.eeoc.gov/facts/health_care_workers.html

Customer:

What type of docuMentation can they request

Employment-LawExpert :

You mean if they put someone on leave until it is completed?

Customer:

No with AA classes taken or an outpatient course completion.

Employment-LawExpert :

So it is illegal to discriminate against an employee because of a disability. As you can see above, alcoholism can be seen as a disability under the law.

Employment-LawExpert :

So, they cannot request any documentation from a recovering employee.

Employment-LawExpert :

That would be seen as discrimination. i.e. they are requesting it of you and not others.

Employment-LawExpert :

That being said, if they have a legitimate business interest of not letting an employee be drunk on the job, then they would be able to suspend you or fire you.

Employment-LawExpert :

In this instance, they would basically be allowing you to keep your job as a reasonable accommodation under the ADA.

Employment-LawExpert :

Accordingly, they would be able to receive documentation relating to your disability.

Employment-LawExpert :

Thus, they would not be able to get medical records, but rather that you are in fact attending sessions.

Customer:

So to clarify I was asked to take some form of action due to a phone call I had after hours with an executive that stated they believed I was slurring my words. They say they want to be sure I did not have a problem and that I should take measures and asked what I am willing to do to ensure I am adressing their concerns.

Employment-LawExpert :

Can I assume that you are an at will employee and that you are not part of a union or that you have an employment contract stating that you can only be fired for cause?

Customer:

I am at will

Employment-LawExpert :

Okay, so your employer may make the treatment a condition of your employment. If they do this, and you refuse to comply, then you could be fired as an at will employee.

Employment-LawExpert :

Of course, the best course of action here is an interpersonal approach.

Employment-LawExpert :

Where you explain that yes you had a few drinks, but that you were at a social event and it is not remotely related to alcoholism.

Employment-LawExpert :

That you had a designated driver, and that you were safe.

Employment-LawExpert :

You would explain in a calm and professional manner that you love your job, love working there, and would be happy to do whatever they wanted of you, but that it is completely unnecessary.

Customer:

Understood may I ask if I opt for AA classes how can they confirm I attended. Do I use a letter to be signed at the meeting. If my employers call will they get the proper proof. And how long and how many sessions can they require legally? 30/60/90 days

Employment-LawExpert :

They cannot legally require any sessions. This is one of those things were they can state that some thing is a condition of your employment.

Employment-LawExpert :

The longer they request, the more likely it is that they are discriminating against you because of a disability, which would end up resulting in you having a cause of action against them for discrimination.

Employment-LawExpert :

If your employer calls, they will not get any proof.

Employment-LawExpert :

Likely, they will have you get a sponsor who will sign something for you.

Employment-LawExpert :

Without express authorization by you in writing, they will not be told anything

Customer:

Should I make an offer of 1 meeting a week for thirty days to avoid termination

Employment-LawExpert :

Well, that is entirely up to you. However, the best course of action may be to say that you are willing to do whatever they want to feel confident in your ability to do the job.

Employment-LawExpert :

If they do not believe you have a problem, they may drop it all together.

Employment-LawExpert :

If they request that you be the one to implement the offer, that is a fine offer to make.

Customer:

Thank you I like the idea of putting it their hands to make the decision what they need to feel confident to continue in my current role. Can they request me to enroll in an impatient program. If so do they need to put this in writing?

Employment-LawExpert :

You should try to get them to put something in writing if you can as a condition of employment. This is because if you comply, and you are then terminated, you would be able to claim that you are being discriminated against because of your disability, and would be able to bring a cause of action against them for wrongful termination.

Employment-LawExpert :

They can request anything they want. There is no limit to what they can request, because they have no legal grounds to do any of this.

Employment-LawExpert :

It is like saying you can only come to work tomorrow if you wear a red shirt.

Employment-LawExpert :

If you are an at will employee, legally, they are allowed to do this.

Customer:

Understood they can request anything they want and as this was a call a phone call after working hours I am finding it a difficult strech that now they are concerned I cannot perform my usual and customary duties.

Employment-LawExpert :

Like I said, if you go in and tell them that yes you had some drinks at a social gathering, but are willing to do what is required, then chances are they will drop the entire thing.

Customer:

Thank you so much for your time and advice.

Employment-LawExpert :

Not a problem. Does that fully answer your question today? If not, please do not hesitate to ask any other questions you have especially if you need clarification on anything i have said. I strive to provide excellent service, so I want to make sure that you feel you have been provided that before you leave today.

Customer:

I am trying to work through, if I put this on the management team they may be hardpressed to put this issue in writing. would you suggest that I take the lead and email my CFO recapping the conversation and request they share with me the course of action they desire to be sure they are confident I can perform my usual and customary duties

Employment-LawExpert :

Well, that is entirely up to you. As to whether or not to do this, really depends on how likely anything is to come from it in the first place. If your email to the CFO clearly outlines that you will do anything for the company to prove that there is no problem, and that this was a one time occurrence at a social event, it could definitely help. On the other hand, your CFO would now know your name, and associate it with alcoholism.

Employment-LawExpert :

So it really ally depends on the working relationships you have with these people

Employment-LawExpert :

But you could state that you do not know how it is possible that they have reached this conclusion, but that you are 100% committed to showing that there is no truth behind it whatsoever, so would you be able to put the matter to rest if you completed x,y, and z

Customer:

Final question. If I they request outpatient treatment what kind of docomentation can the facility provide as this is not a court demanded request

Employment-LawExpert :

They cannot provide anything without your written authorization. If you were to provide written authorization, however, then they would be able to provide when you were there and what for.

Employment-LawExpert :

If the employer starts asking for more than this, such as records, then you would want to speak to an employment attorney immediately as this would be deemed unreasonable under the ADA and would lead to a cause of action for discirmination.

Customer:

Understood and thank you for your time. I believe you have answered all my questions to my satisfaction. This was an out of the blue issue that I have never encountered. I am an HR Director and now see both sides of this employee/employer concern.

Employment-LawExpert :

I am glad that I could get you pointed in the right direction. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

You do the same and you w will receive positive feedback from me!

Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1783
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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