What are the Rules Regarding Employees that have Suspected Substance Abuse Problems?

Q.     Much has been made over the decision by Cleveland Browns quarterback and former Heisman Trophy winner, Johnny Manziel, to enter rehab.  The Browns have noted they fully support Manziel’s decision.  There have also been recent reports that the same team has suspended standout wide receiver, Josh Gordon, for violation of their substance abuse policy.  This seems like a double standard.  I know my employees don’t play football, but what are the rules regarding employees that have suspected substance abuse problems?

A.     This is a difficult question that requires specific concern.  And, although there is sometimes humor in these e-mails, alcoholism and drug dependency are not laughing matters and have profound family and community impacts, as well as significant legal ramifications.  In California, the Labor Code requires private employers that regularly employ 25 or more employees to reasonably accommodate an employee who wishes to participate in an alcohol or drug rehabilitation program.  Likewise, an employer must make reasonable efforts to ensure the employee’s privacy.  Finally, the Labor Code has a mechanism for an employee to file a complaint if the employer has refused to reasonably accommodate an employee who wishes to attend an alcohol or drug rehabilitation program.  Outside of these specific California Labor Code provisions regarding rehabilitation programs, alcoholism and drug dependency may also qualify as a disability which an employer may be required to accommodate (generally through leave) or provide statutory leave to address.

At the same time, while alcoholic employees may be provided some protections, employers can still terminate employees who abuse alcohol at work, or cannot perform because of a “hangover” or other after effects.  Ultimately, employees are still required to perform the essential functions of their job.  And, while an employer may be limited in its ability to require employees to be randomly drug or alcohol tested, the law generally permits testing based upon reasonable suspicion of use.

Finally, where an employee has abused alcohol at work, some employers have used “last chance” agreements.  While there is little case authority regarding the legality of last chance agreements, they are viewed favorably by employer groups as a means of documenting an issue and providing an employee a final opportunity to improve before termination.

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