When dealing with an impaired employee, tread carefully

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   This is a common question, and one that has a few hidden landmines.

First, be sure you have sufficient evidence he broke company policy. Mere suspicion or supposition isn’t enough. His signs of impairment could have been the result of another influence, such as prescription drugs.

Tread carefully because an alcoholic (regardless of taking steps to recover) and a recovering user of illegal drugs are considered disabled under the Americans with Disabilities Act (ADA) and many state disability laws. That doesn’t mean you have to overlook a violation of company policy. But you will want to make sure you are acting consistently. If you have never terminated an impaired employee for a first offense before, you could face the allegation you are treating him more harshly because he has a substance abuse problem, which could create a disability discrimination claim.

Finally, if the employee is disabled and is seeking leave for recovery, this would be considered a form of reasonable accommodation. Of course, if termination is justified by the evidence, your precedent, and company policy, you don’t have to provide the reasonable accommodation.