Q - A: What to do when employee shows signs of drug or alcohol use at work

Q We have an employee who definitely showed signs of being on drugs or alcohol at work. We want to let him go per our handbook policies, but he has now stated he is getting help for his problem. Is he protected since he is going to seek help, or can we fire him because he broke company policy? Generally, you can enforce your workplace conduct rules even if the employee claims to have a disability based on drug or alcohol addiction, which he alleges caused him to violate the rule. Preliminarily, you should determine which substance he is believed to be abusing at work.

If you determined he is under the influence of drugs, the Americans with Disabilities Act (ADA) excludes individuals who currently use illegal drugs from its protections. The definition of illegal drugs in this context includes the misuse of prescription drugs. An individual is deemed to be a current user if he has been using illegal drugs within weeks or even months of the employers adverse employment action (in this case, the termination of the employee).

Further, an employee who is caught violating company policy prohibiting employees from being under the influence of illegal drugs in the workplace cannot avoid discipline by enrolling in a rehabilitation program before termination. Thats because he will likely be considered a current user due to the proximity in time between the violation of workplace rules and proposed discipline and his subsequent enrollment at a rehabilitation facility. The enrollment itself would evidence a current and ongoing struggle with drug use.