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.

A USA Today article from Monday of this week stated that one in twelve full-time workers in the United States admitted to using illegal drugs in the past month. The highest rates of drug use were reported among younger workers and those in the restaurant and construction industries. The survey found that most of the illegal drug use was marijuana.

These numbers are alarming and speak to the importance of having an employee policy prohibiting the use of alcohol and drugs in the workplace. When your employees are using drugs and alcohol they are endangering themselves, their co-workers and your business.

All employees of A Plus Benefits and its clients are subject to an alcohol and drug safety policy that outlines when drug testing will occur and what happens in the event of a positive drug test. If you would like more information on creating a drug and alcohol policy for your business, please let us know.

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

According to www.OSHA.gov the Top 10 listing of OSHA’s most frequently cited standards are:

Scaffolding
Standard 1926.451
This standard covers the generally safety requirements for the construction, maintenance and use of scaffolding. Basically, employers must protect workers from falls and falling objects while working on or near scaffolding at heights of 10 feet or more.

1926.451(g)(1) Failure to provide fall protection.
1926.451(e)(1) Failure to provide proper access.
1926.451(b)(1) Failure to ensure adequate platform construction.
1926.451(g)(1)(vii) Lack of personal fall arrest or guardrail systems.
1926.451©(2) Failure to properly support scaffolding.

Hazard Communication
Standard 1910.1200
This standard addresses the hazards of chemicals, both chemicals produced in the workplace and those imported into the workplace. It also governs the communication of those hazards to workers.1910.1200(e)(1) Failure to develop and maintain a written program.

1910.1200(h)(1) Failure to maintain training.
1910.1200(h) Lack of employee training.
1910.1200(g)(1) Failure to have a Material Safety Data Sheets for each chemical.
1910.1200(f)(5)(i) Failure to label each container with the identity of the chemical within.

Fall Protection
Standard 1926.501
This standard tells workers and employers where fall protection is required, which fall protection systems are appropriate for given situations, the proper construction and installation of safety systems, and the proper supervision of employees to prevent falls. The standard is designed to protect construction personnel working above 6 feet.

Every year OSHA issues thousands of citations to companies that supply inadequate safety training to their employees. Although the majority of OSHA standards do not call for safety training, you can be cited for violating almost any standard if your employees aren’t trained.For example, your employees might be required to wear respirators before entering a restricted area where cadmium exposure is high. But if they don’t choose the correct respirator, or if they don’t know how to conduct fit tests, you’ll be cited for violating the cadmium standard. What led to the citation? Lack of training.This scenario can be adapted to virtually every OSHA standard. Training is always an essential element of compliance. Without it, you will face fines. On a broader spectrum, training is often the key to maintaining a safe workplace because employee’s attitudes can often mean the difference between safety and tragedy. After all, no safety program or equipment will be of any use unless employees commit themselves to working safely, using the appropriate personal protective equipment as instructed, and following safe work procedures.

Safety training should be one of your top priorities. Through education and training, you can teach workers to stay safe, and you can stay in compliance with OSHA’s training requirements. To achieve both of these very important goals, take the following approach to safety training:

Know When To Train
As soon as workers are hired, be sure to familiarize them with your company’s philosophy toward safety. You should use training to instill the right attitude in your new workers. You want them to take the issue of safety seriously and to make the commitment to following the safety rules. Then provide specific training to address the particular hazards they will face on the job. In addition, update company training material, equipment, or work procedures whenever there is a change. Finally, provide training updates as often as the OSHA standards require.

Know What To Cover
It’s crucial to provide training that is mandated by the OSHA standards. If you don’t, workers could become injured or ill and you could be fined. In all, there are 75 standards that require you to train workers in specific hazards. So take a good look at the standards and insure you cover the required topics.

Required Training by OSHA Regulation
You have a general duty to teach your employees how to do their jobs safely. OSHA mandates training in a number of its standards. And there’s always the chance that your training program did not adequately cover the mandates. If applicable to your operations the following tasks must include formal, initial and annual refresher training.

1. 1910.38 Evacuation Plans
2. 1910.66 Powered Platforms
3. 1910.134 Open Surface Tanks
4. 1910.95 Hearing Protection
5. 1910.96 Ionizing Radiation
6. 1910.106 Flammable/Combustible Liquids
7. 1910.109 Explosives
8. 1910.1200 Hazardous Materials
9. 1910.110 Liquefied Petroleum Gases.
10. 1910.120 Hazardous Waste and
11. 1910.134 Respiratory Protection
12. 1910.147 Lockout/tagout
13. 1910.151 Medical Services and First Aid
14. 1910.155 Fire Protection
15. 1910.177 Material Handling and Storage
16. 1910.178 Powered Industrial Trucks
17. 1910.179 Overhead and Gantry Cranes
18. 1910.217 Machine Guards
19. 1910.253 Welding and Cutting Procedures
20. Subpart Z Toxic and Hazardous Substances
21. 1910.1200 Hazard Communication