Pop quiz: If an employee with a well-documented alcohol issue comes into work intoxicated, can you legally fire that employee or are you required to place him or her on FMLA leave?
If you said that termination is a perfectly acceptable to response to the above situation, you’re absolutely correct.
That exact situation played out recently in the news after the University of Southern California (USC) fired its former football coach, Steve Sarkisian.
After a number of documented alcohol issues, Sarkisian allegedly showed up inebriated at a team meeting. That prompted USC to put Sarkisian on an “indefinite” leave of absence one day after the meeting and ultimately fire him after the organization considered “what is in the best interest of the university and its student athletes.”
Following news of the Sarkisian firing, HR pros started questioning the legal ramifications of such a move. After all, alcoholism can be a serious medical condition where treatment may require leave time, right?
Substance abuse vs. treatment
However, as FMLA Insights founder and employment attorney Jeff Nowak points out, the FMLA makes a clear distinction between an employee with a substance abuse disorder and an employee who actually comes in to work intoxicated.
According to the FMLA:
FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.
To further support termination decision for substance-abuse issues, the FMLA regs include this language:
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.
Bottom line: An employee’s performance issues that stem from substance abuse aren’t protected under the FMLA.
Under the FMLA, USC was justified its decision — provided it can prove the decision was based on Sarkisian’s actions — even though it initially placed him on leave and then quickly turned around and fired him.
Performance, policy considerations
The major takeaway from this widely publicized termination: Employers can hold employees with substance abuse issues to the same performance standards as other employees and discipline those employees for inappropriate conduct such as showing up to work drunk. But the key to getting such decisions to stick is having a clear written policy that spells out the consequences for substance abuse at work.
However, as Nowak reminds employers, if an employee with a substance abuse problem informs his employer that he’s planning to seek treatment for the problem, then the FMLA is in play — and the company will likely have to provide leave.