As an ardent college football fan, the recent firing of (now former) USC football coach Steve Sarkisian has been of interest to me. On one hand, this makes for an attention-grabbing turn of events for USC football. On the other, the school’s reaction to Sarkasian allegedly showing up drunk to practice has some wondering: Should Sarkasian have been placed on FMLA leave instead of being terminated?
Alcoholism exists in many California workplaces. According to National Clearinghouse for Alcohol and Drug Information (NCADI), alcohol and drug users:
1. are far less productive;
2. use three times as many sick days;
4. are five times more likely to file workers’ compensation claims.
Employers may be concerned about an employee with a severe drinking problem and simultaneously wondering the best way to handle it, from a legal standpoint. Is the employee entitled to FMLA leave or is termination the appropriate route? These days, a California employer does not want to make the mistake of not offering FMLA leave where it may potentially be warranted for fear of litigation.
Does the FMLA Protect An Employee Who Shows Up To Work Intoxicated?
While alcoholism is seen as a disability under the ADA and California’s Fair Employment and Housing Act, generally speaking, the FMLA does not protect an employee who shows up to work under the influence. FMLA regulations clearly indicate that leave relating to substance abuse need only be given when the employee is seeking treatment based on a referral by a health care provider — not when s/he shows up intoxicated at work (29 C.F.R. § 825.119(a)). In other words, if an employee advises the employer that he intends to take time off for substance abuse treatment, the employer must provide FMLA leave.
Insights for CA Employers
Both the FMLA and ADA allow an employer to hold an employee suffering from alcoholism to the same job performance standards as other employees. This means that the employer has the right to discipline an employee who abuses alcohol and fails to perform the job.
Make sure your well-written employment policy (as stated in your employee handbook) prohibits substance abuse. Under the FMLA, “if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.” 29 CFR 825.119.
For more information on how to deal with substance abuse in the workplace, contact experienced employment attorney Drew E. Pomerance today.