This Sounds A Lot Like The Posting From Last Week

Steven Cesare, Ph.D.

A business owner from Washington called me the other day to discuss an employee about whom increased suspicions of alcohol use were becoming more frequent. The suspicions were rooted in multiple instances where the employee “seemed to” have alcohol on his breath. Despite the presence of a company-wide Reasonable Suspicion Drug and Alcohol Policy, the owner never invoked that option.

Predictably, the employee began to demonstrate performance problems, all the while continuing to exhibit an alcohol-related aura. In spite of repeated coaching incidents, the owner kept the employee on staff due primarily to current staffing shortages, and the employee was a good friend of a current company employee. Thus, regardless of performance problems and probable policy violations, the owner kept the employee on the payroll due to contextual considerations.

Surprise, surprise! Absenteeism then became prevalent. Accordingly, the owner finally reached his limit. He called me to develop the exit plan.

Interestingly, while the discussions between the owner and I were taking place, the employee informed the owner that he had just entered an alcohol treatment center.

Did you know that alcoholism is viewed as a disability under the Americans with Disabilities Act?

Neither did the owner.

Now that the employee could invoke protected class status due to his disability, our entire proposed exit plan had to be revised to avoid any perceived personnel action that could be misconstrued as leading to a discrimination claim.

Just like the posting from last week detailing the administrative reluctance of the Michigan business owner, had the Washington business owner moved immediately upon initial detection of the employee’s performance problems and policy violations, the problematic employee would have been dismissed post-haste, well in advance of any ADA protections.

To be clear: I completely understand the staffing pressures landscapers are currently experiencing.

To be clear: I cannot understand continuing to employ employees who are a risk to your company.

My generic advice is that an employee’s initial bad performance or policy violation should be documented (i.e., written reprimand) immediately, with subsequent disciplinary issues leading to termination. Why risk a wrongful termination claim over your virtuous sense of hope that an employee will improve?

They don’t change their spots. (Read last week’s post.)

Back to Washington. Due to the specter of a probable ADA claim, per EEOC guidelines, the Washington business owner engaged the employee in the Four-Step Interactive Process to identify potential return to work considerations. Concurrent with that process, the company altered its organizational chart in response to dynamic business changes, which required the employee’s original position to be dissolved.

In response, the company offered two personnel alternatives to the employee: (1) a similar position with consistent pay to that of the dissolved position, and (2) a lucrative severance package. The employee chose to remain with the company.

Let’s just hope the business owner holds the employee accountable to performance and policy standards.

Because they don’t change their spots.

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