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Mar20

Forcing Employee to Take Leave

Can an employer force an employee to take a mandatory leave of absence? Can we refuse to let them return to work until they seek treatment and obtain evidence of starting treatment? The employee was visiting the work place while they were on FMLA and while under the influence of alcohol. The employee is a known for having drinking issues in the past.

Employers are permitted to adopt policies prohibiting the use of alcohol and prohibiting employees from being under the influence of alcohol in the workplace. Consequently, an employee who violates such policy, even if the employee is an alcoholic, may be disciplined in the same manner as any other employee. For example, an employer may have a clear, consistently applied policy of terminating any employee who is under the influence of alcohol while in the workplace.

It’s also important to address the employee’s behavior and any performance issues, not focus on the employee’s alcohol abuse. The appropriate disciplinary action for such violations should be followed.

It’s worth mentioning how the Family & Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) relate to this situation.

As you know the FMLA entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including to care for one’s own serious health condition. The use of alcohol isn’t a FMLA-qualifying event; however, the treatment for alcoholism is covered. Thus, the employee may use any remaining FMLA leave entitlement for treatment.

The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

Alcoholism is a common covered disability under the ADA. Thus, the employee may be entitled to a reasonable accommodation under the law if he is qualified and able to perform the essential functions of the job. A common reasonable accommodation for alcoholics is a short term leave for treatment.

An employer may allow the employee to take a leave of absence for treatment under the aforementioned laws but the employee cannot be forced in to medical treatment. The employer may offer the employee a choice between seeking treatment and being terminated for violation of company policy/poor performance/misconduct, referred to as a last chance agreement.

A last chance agreement should clearly state what is expected of the employee. For example, that the employee is being given leave to participate in a rehabilitation program, the employee will be subject to alcohol testing and failure to complete the program or further misconduct will warrant termination. The employee can be required to show proof of his completion of a rehabilitation program as part of the last chance agreement.

HTH!

This entry was posted on Monday, March 20th, 2017 at 1:09 pm and is filed under
Attendance Management, Labor Laws.
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