What to do if employee breaks policy against 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?

A   You are well within your rights to prohibit drug and alcohol use in the workplace and can terminate employees for being under the influence of alcohol or drugs on the job. The answer to your question can change, however, if your evidence of on-the-job usage isn’t solid.

Generally, employees with a drug or alcohol addiction are considered disabled under the Americans with Disabilities Act (ADA). Such employees will be protected from being fired if they aren’t current users and are seeking treatment. Protected employees must be allowed to seek treatment, so long as they can still perform their essential job functions with a reasonable accommodation.

Of course, whether an employee is protected depends on whether he really is considered disabled under the ADA. Your employee may be covered under the ADA if:

• His addiction to drugs or alcohol “substantially limits” one or more of his major life activities;
• He has a record of being “substantially limited” in his major life activities by the addiction; or
• If you, the employer, regard him as being addicted to drugs or alcohol.

If he meets one of these conditions, he is likely protected.