Is An Alcoholic Employee (or Drug Addicted Employee) Protected?
An individual with alcoholism or a drug addiction is protected under the Minnesota Human Rights Act as a “qualified disabled person” if he or she can, with reasonable accommodation, perform the essential functions of the job in question and does not constitute a direct threat to property or to the safety of others. If the individual cannot perform the job (e.g. he or she does not come to work or is badly “hungover” at work) or if the individual is a threat to safety (e.g. his or her duties include driving a forklift), that individual is not a protected disabled person under Minnesota law and may be disciplined, up to and including termination.
Minnesota law provides that an employee may be terminated for alcohol or drug abuse that prevents the employee from performing the essential functions of the job: “For the purposes of this subdivision, ‘disability’ excludes any condition resulting from alcohol or drug abuse which prevents a person from performing the essential functions of the job in question or constitutes a direct threat to property or the safety of others.” See Minn. Stat. § 363A.03 subdiv. 36.
Disciplining or terminating an employee based on legitimate performance problems is not disability discrimination even if chemical dependency is the root cause of the performance problems. However, the employer must be careful in determining actual performance problems rather than mere suspicions that chemically dependent people make poor employees. All disciplinary actions should be imposed on employees in a uniform and non-discriminatory manner.
The problem employers often have with alcoholic or addicted employees is that the condition may be suspected but not proven. The employer runs a risk of defaming an employee when there is no proof of the addictive condition, such as may be established if the employer maintains a drug testing program (see below). In dealing with an employee suspected of alcoholism or addiction, it would not be defamatory to ask the employee whether his or her absenteeism, poor performance, etc. is caused by drinking (or other substance abuse), so long as such an inquiry is not communicated as a statement of fact to the employee or to any other person. It is acceptable to ask whether this is the problem and, if not, what the problem is, and offer the individual time off for treatment either on an in-patient or out-patient basis. The employer should not insist or require an employee to undergo chemical dependency treatment as a condition of continued employment. Minnesota’s insurance statutes require that chemical dependency treatment be at least partially covered under most employer group health plans (see footnote 441).
The employer is advised to offer an employee with an abuse problem an opportunity for treatment or rehabilitation before taking any disciplinary action. The employer can require that treatment be at the employee’s expense or under the group health plan; it need not pay for treatment unless it has done so for other employees. If the employee refuses to take advantage of this offer and the employee continues to perform poorly, absent any other legal restrictions, the employer should be able to take disciplinary action against such an employee. Any such action should be based on unacceptably poor performance, and not on the underlying condition, should be consistent with the employer’s policies as set forth in the employee handbook or elsewhere, and should be based on the same policies applied to all employees. Because of the potential for liability based on defamation and disability discrimination, the employer is advised to seek the advice of legal counsel prior to counseling, disciplining, or terminating an employee suspected of substance abuse.
CREDITS: This is an excerpt from An Employer’s Guide to Employment Issues in Minnesota, provided by the Minnesota Department of Employment and Economic Development & Linquist & Vennum P.L.L.P., Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.
This post is also part of a series of posts on dealing with alcohol or drugs in the workplace.
- 440. Minn. Stat. § 363A.31 (2007).
- 441. 29 U.S.C. § 626(F), (G) (2007).