Alcoholism takes staggering toll on smaller businesses

Alcohol and drug abuse costs American businesses a staggering $81 billion or more annually in lost productivity, according to estimates compiled by the U.S. Department of Labor. Eighty-six percent of those losses are attributed to drinking.

Alcoholism alone is estimated to cause 500 million lost workdays every year, and alcohol was a contributing factor in almost half of all industrial accidents. In addition to the tremendous financial burdens and health risks, alcohol abuse in the workplace degrades public safety, morale and judgment, and often leads to discrimination, harassment and violence.

Studies show that small businesses are especially vulnerable. A U.S. Department of Health and Human Services study found that 83 percent of heavy drinkers with full-time employment work for small or midsize businesses.

These businesses typically lack the resources to screen for substance abusers or to maintain strong programs to address the problem. Yet, state and federal laws have recognized that alcoholism and drug addiction can be disabilities triggering legal protection. What's an employer to do?

A good first step is to determine which laws apply. Businesses with few employees may be exempt from certain legal obligations. For example, the Americans With Disabilities Act (ADA) applies only when there are 15 or more employees. The Family and Medical Leave Act (FMLA) applies only to companies with 50 or more employees. However, certain Massachusetts antidiscrimination and employee-leave statutes apply when the business has as few as six employees.

The next step should be to determine whether an employee's misconduct falls outside the zone of legal protection for disabilities.

For example, under the ADA, companies may prohibit employees from working while under the influence of alcohol or illegal drugs. Accordingly, management can discipline or terminate employees who show up for work under the influence, regardless of their requests for accommodation.

Casual or binge drinkers often create the biggest headaches for employers. One recent study found that casual drinkers caused almost 60 percent of alcohol-related problems at work.

Fortunately, just because an employee drinks excessively on occasion does not necessarily mean that the employee is an alcoholic or that he or she has a legally recognized disability. The law is fairly clear that "nondependent" alcohol abuse, which does not create a substantial limitation on major life activities, garners no legal protection.

Courts have been careful to distinguish between employee misconduct and the physical limitations imposed by a disability. Employers should follow this lead and discipline misconduct, not a disability.

If an employee disabled by alcoholism commits misconduct which would disqualify a nondisabled employee, then courts deem the alcoholic employee unqualified for his or her position and not entitled to legal protection.

Thus, in many situations, employers may discipline or terminate an employee for alcohol abuse even if the employee is an alcoholic with a legally recognized disability.

For example, while alcoholism might explain a drunk driving incident, it does not excuse it. Accordingly, courts have upheld an employer's right to discipline alcoholic employees for drunken driving and similar egregious misconduct. Simply put, employers may demand the same standards of behavior for all of their employees regardless of disability.

Even if employees have protected disabilities, employers need not accept late or unreasonable demands for accommodation.

Excessive absenteeism, one of the more frequent problems for companies with alcoholic employees, illustrates this point well.

If an employee fails to make a timely request for a leave of absence or fails to notify the employer about his or her alcohol-related disability, many courts have acknowledged the employer's right to discipline or terminate the employee. Similarly, an employer need not accommodate an employee's request for leave in the face of multiple prior absences and a low probability of his or her rehabilitation.

On the other hand, employees with a legitimate alcohol-related disability are entitled to request reasonable accommodations under federal and state disability statutes.

Employees may also seek treatment on their own, and if they qualify, they may request up to 12 weeks unpaid leave pursuant to the FMLA. Employers must take the time to review the specific facts of each situation, on a case-by-case basis, and make an individualized determination of the reasonableness of each requested accommodation.

Studies show that changes in corporate culture and management supervision can have a substantial effect on drug abuse at work. Businesses that include employee assistance or health club benefits tend to have fewer problems as well. Pre-employment or random drug testing can be a very effective measure, but it is subject to certain state and federal privacy restrictions.

Perhaps the single most important change an employer can make is to publish written policies regarding alcohol and drug abuse.

Federal contractors, in particular, are often required to adopt stringent drug- and alcohol-free workplace policies. The policy should be written clearly, refer to both on- and off-duty conduct and be made available to every employee.

Consistent enforcement is crucial and will greatly reduce the likelihood of employee lawsuits. Employers are well advised to consult with their attorneys in drafting or updating their alcohol and drug use policies.

Finally, it is important to recognize alcoholism as a disability that can be treated effectively in many cases. By adopting appropriate programs and accepting reasonable accommodations designed to rehabilitate, small businesses can attract and retain valuable employees, saving substantial time, money and morale.