Let’s talk intoxicants and the workplace, as together they always make for such a good cocktail. What follows covers America’s favorite pastimes, listed in alphabetical order and surely out-of-date the minute it arrives.
Drinking at Work
Alcohol is everywhere. Alcohol is legal but widely considered the most abused substance of all. You are allowed to require your employees be sober when they arrive to work. You are also allowed to ban drinking at work. That part is easy. Done.
Alcohol is also a special case. The ADA does not consider it to be an “illegal drug.” But current addiction gets some protection.
This means two things. First, if someone is an alcoholic but it never affects her work performance, you cannot punish her just because of the disease. Second, if several people get drunk at the holiday party, do not single out the alcoholic for punishment. Your best approach: treat everyone the same.
If an employee is an alcoholic, you might need to offer an accommodation, a form of bending. That could mean time off for AA meetings, or a leave for detox. That last bit can also go under the FMLA.
Tough love time. If someone misses work or her performance suffers due to alcohol, you may take action. An employer may hold an employee to the same standards of attendance, performance and conduct as any other. If the person comes in late or drunk, or falls asleep, discipline as you would for anyone else.
Beware of alcohol testing. Unless some other federal law requires you, alcohol testing is only allowed for cause, never randomly. In other words, never across the board, and never just because. Note that an alcohol test is considered a medical exam. A drug test is a special case. The ADA considers it a non-medical exam. You cannot test for alcohol before the job offer. This restriction does not apply to other drugs. After an offer, only test with a job-related reason.
What about off-duty drinking? The “lawful activities” statutes, now in more than half the states, protect off-duty conduct. These laws were aimed at smokers, but are broader. One example is Colorado’s, which protects lawful activity. In Coats v. Dish Network, the employee used medical marijuana on his own time, was fired and sued.
The rules for drinking do not end there. Certain industries, like transportation and aviation and nuclear energy, have their own federal alcohol rules.
The law has a lenient hand for sugary drinks and foods, like coffee, chocolate and Coke. That in itself is no surprise. I’d love to comment on caffeine, but I’m too jumpy. Totally legal, no protection. Decaf workers get no legal breaks.
Legal, Illegal and Marijuana
The issue of drugs is complex, and is evolving rapidly, so beware. They fall into three groups: legal, illegal and marijuana.
Legal drugs may cause impairment at work. If someone is taking a medicine, like a narcotic, for a medical condition, it falls under the ADA. And so does the underlying medical condition. The employer may need to offer some bending. Then, there is that wonderful concept called safety. Workers on legal drugs may be pulled from safety sensitive tasks. If they can stay off the drug, they may be allowed to return to the riskier job.
Cocaine, heroin, LSD, ecstasy, Walter White’s blue meth: all illegal drugs other than pot. Employers can ban these. The ADA does not protect current users of illegal drugs. A positive drug test is usually evidence of current use. State laws may be broader.
A former addict, now clean, enjoys ADA protection. He may need an accommodation, like time off for Narcotics Anonymous or rehabilitation.
How seriously someone uses illegal drugs determines if she gets protection. If she is a casual user, never addicted, she loses, even after quitting. The exception is if you regard her as a recovered addict.
As for marijuana, some states allow medical use, some allow even recreational. Or both. The federal government doesn’t. Prohibition States: just follow the illegal-drug rules above.
In medical MJ states, an employee who uses marijuana might enjoy some protection under state and local law. This does not exist under the ADA. Courts reason that under the federal statute, marijuana is an illegal drug.
Recreational pot users are not protected by the ADA. They might enjoy some protection under state and local disability law, but that’s not likely.
And if you do work in a regulated industry like transportation or aviation, the rules can be very different and more demanding. You must obey both sets of rules.
Ban Tobacco Smoke on the Premises
Tobacco. You may ban smoking on the premises, the entire property. Wellness programs try to push employees away from the nicotine. Nicotine addiction is not an ADA disability. The tobacco-related medical condition, however, may be a disability. There, the employer might have to offer some bending.
The “lawful activities” statutes mentioned above protect smokers in their off-duty time. They generally say that an employer may not discriminate against an employee because of it, though exceptions may apply.
Vaporizers and e-cigarettes represent a public-health debate that will continue to be fought by scientists. But from an employment law angle, you can ban vaping, at least until someone gets protection from the ADA or a state law. If you ban tobacco smoke on the premises, you may do the same for e-cigs.
Stay tuned. These laws are constantly changing, so be sure to check this site or otherwise keep current. Any of this could change tomorrow.
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