Anchorage Daily News

Q. My deputy is a former and perhaps relapsed alcoholic. He represents our agency at many state and public functions. In May he was scheduled to give an address at a major meeting involving hundreds of attendees. He showed up late and appeared disheveled. Because he was so late, the meeting organizers simply skipped his opening address.

After I learned about this incident, I began hearing rumors about his former alcoholism. I'd like to terminate him, but our human resources officer says we can't because this man was given a clean bill of health after he successfully completed a treatment program three years ago. She said we could place him on administrative leave, but I don't see the benefit as he'd be on full pay. She said, "Well, you'd send him a message."

I've since learned our HR officer also has a drinking problem and don't know that she's giving me good advice. She didn't tell me about this man's history although she knew it when he was hired. When I asked why she didn't tell me she said she didn't think I needed to know.

Can I write a blanket policy excluding all current and former alcoholics from positions in my company? Can I fire my deputy? Can I fire my HR officer for insubordination?

A. You can fire individuals who don't do their jobs as long as you do so fairly. You can't, however, fire all former alcoholics. Although you can terminate employees who perform poorly because of current alcoholism and those who drink alcohol on work time if you have policies against this, the Americans with Disabilities Act protects individuals with disabilities, including alcoholism. According to attorney Lee Holen, "Individuals recovering from alcoholism are entitled to the same protections accorded other disabled individuals."

"Employers can hold alcoholic employees to the same standards of performance and conduct they set for other employees," says Holen. "Thus employers save themselves a great deal of trouble if they focus on job performance rather than rumors or fears about alcoholism."

As a clear example of the issues that arise when employers try to exclude recovered alcoholics, after the tanker Exxon Valdez ran aground in 1989, Exxon instituted a policy excluding individuals with a prior history of alcoholism from holding ship captain and other minimally supervised safety-sensitive positions. Exxon's anti-alcoholic policy launched years of litigation involving the federal Equal Employment Opportunity Commission.

The commission argued that the ADA protects former or recovered alcoholics and only allows employers to fire individuals who pose a "direct threat" or "significant risk to the health and safety of others." Further, the EEOC requires employers to conduct an individualized risk assessment detailing the potential harm the alcoholic might cause, along with the harm's severity, imminence and likelihood before terminating a recovered alcoholic.

"The days of excluding any broad categories of individuals from employment or penalizing someone for having once been an alcoholic are over," adds Anchorage attorney Tom Van Flein. "That said, showing up for work under the influence of alcohol is not protected and any employer can fire an employee who shows up impaired."

Further, employers that can prove current problems can generally dismiss recovering but relapsed alcoholics. For example, Humana Health Plan successfully terminated a treating physician with a history of past alcohol abuse when patients and co-workers complained they smelled alcohol on the doctor during procedures.

Holen suggests you document the situation and give your deputy a clear warning about his attendance, on-time arrival and appearance at functions for which he represents your agency. Holen also suggests you clearly tell your HR officer what information you expect her to share with you. Then, if either again under-performs, you can terminate them based on objective, enforceable standards.

Lynne Curry is a local management trainer, consultant and syndicated columnist. Her advice and opinion column appears Mondays. Questions for her column may be faxed to her at 258-2157 or mailed to her c/o Anchorage Daily News, P.O. Box 149001, Anchorage 99514-9001. Her e-mail address is lynne@thegrowthcompany.net.

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