Many employers and employees have questions regarding their right to privacy while at work. One popular question is, are employers allowed to read employee e-mails?

Employers are legally allowed to monitor communications by employees on company owned communications devices including telephone, voicemail, e-mail, company owned cell phones with voicemail and text messaging capabilities as long as they inform employees that they should have no expectation of privacy.

A Plus Benefits encourages clients to create a policy stating that the employee should have no expectation of privacy. A sample policy can be found below:

Employees should have no expectation of privacy. Telephones, computers, e-mail systems, voice mail systems, lockers, desks, etc., are and remain the property of the Company. From time to time it may be deemed appropriate to monitor or search these systems and property.

Employees should not have any expectation of privacy when company computers are used for such purposes as e-mail, internet use, instant messaging, etc. Further, employees who have personal mail delivered to a Company address should have not expectations of privacy concerning mailed communications, while the Company has no desire to examine personal mail; there is no assurance that personal correspondence will not be inadvertently opened.

Such a policy will protect employers if they choose to monitor employee communications. For example, if a company decides to monitor an employee’s e-mails and the employer finds proof of some act leading to the termination of the employee, the employee would not be able to claim that he was unaware that his e-mail messages were being monitored and the company would avoid a potentially costly lawsuit.

Samantha Bushard is an HR employee at the Idaho office of A Plus Benefits, Inc.

Drunk and Disorderly–Do You Have to Accommodate Alcoholism?

(We received this great article about Alcohol on the job today from HR Today- we hope you find it helpful and informative….)

By government estimates, nearly 14 million Americans abuse alcohol or are alcoholic, and millions more are close to being so. That means, odds are, some of them are working for you.

Fortunately, with support and treatment, many people are able to stop drinking and rebuild their lives. But how much does the company have to help?

What is alcoholism?
Alcoholism is a disease marked by these symptoms:
–Craving (a strong need or compulsion to drink),
–Loss of control (the inability to limit one’s drinking),
–Physical dependence (withdrawal symptoms such as nausea, sweating, shakiness, and anxiety occuring when alcohol use is stopped after a period of heavy drinking), and
–Tolerance (the need to drink greater amounts of alcohol in order to “get high”).

Is alcoholism a disability under the ADA?
The Americans with Disabilities Act (ADA) does not contain a list of medical conditions that constitute disabilities. Instead, the ADA says a person has a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

According to the Equal Employment Opportunity Commission (EEOC), alcoholism is an impairment. Therefore, people with alcoholism who are substantially limited in a major life activity will have a disability under the ADA.

However, even if a person with alcoholism meets the definition of disability, an employer may discipline, discharge, or deny employment to an alcoholic whose current use of alcohol adversely affects job performance or conduct to the extent that he or she is not “qualified,” or if the person’s presence creates an “undue hardship” for the employer.

Does an employer have to allow use of alcohol at work as an accommodation?
No. The ADA specifically provides that an employer may prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol.

Are tests for alcohol use considered medical tests under the ADA? Yes. Blood, urine, and breath analyses to check for alcohol use are considered medical exams and, therefore, are subject to ADA limitations. According to the EEOC, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment.

Pre-offer, the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.

Post-offer (after an applicant is given a conditional job offer, but before he or she starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

After employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

May an employer test an employee who has been off from work in an alcohol rehabilitation program?
Yes, according to the EEOC, but only if the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat in the absence of periodic testing. (Employers also may conduct periodic alcohol testing pursuant to “last chance” agreements.)

The determination of “reasonable belief of direct threat” requires individualized assessment of the employee and his or her position and cannot be based on general assumptions. One example might be a bus driver with only a few months’ experience who returns to work after 4 months of rehabilitation and counseling.

Given the safety risks associated with the bus driver’s position, his short period of employment, and recent completion of rehabilitation, the employer can likely show that it would be job-related and consistent with business necessity to subject the driver to frequent periodic alcohol tests.

However, take the same situation except that the worker is clerical. Now it is not likely that the employee poses a direct threat, so the employer probably cannot show that periodic alcohol testing would be job-related and consistent with business necessity.

This article offers good advice, but as you can see the answers to drug and alcohol testing and the ADA are not always cut and dried. For this reason it’s a good idea to contact your HR Advisor at A Plus Benefits before conducting any non-accident drug and alcohol testing.

Thanks for reading our blog.
Randall Barker SPHE CELS, is the VP of Human Resources for A Plus Benefits, Inc.