Can You Ask an Employee if They Have a Drink Problem?

What do you do, as someone working in Human Resources, if you - or an employee’s manager - suspect that they have a drinking problem? Is it any of your business? Can you ask them outright? 

The answer to that is, generally speaking, no it isn’t and no you can’t. 

But what if their problematic alcohol usage is impacting your company? 

For example, they’re turning up to meetings with clients drunk, or they’re on the road and a potential risk to themselves and other road users and pedestrians. Neither of these things are going to reflect well upon your company and its image. 

Or are you within your rights to ask someone if they have a problem with alcohol if they’re suspected of drinking at work? Or if, even worse, they’ve charged the purchase of alcohol to their company credit card in order to hide their drinking from their partner or spouse?

After all, it’s one thing going on a business trip and paying for a couple of beers with dinner - and quite another to be purchasing bottles of wine or scotch on the corporate card on a regular basis

Employees with drink problems: a case study

Take the real life case of an employee whose bosses suspected he was using his company card to buy alcohol. Their reimbursement policy for expenses clearly stated that the credit card was to be used for work-related travel and subsistence expenses - it most certainly didn’t cover personal purchases.

Not only this but the employee was, of course, fudging his expense reports to cover up his purchase of booze. 

Both of these actions - the personal purchases and the incorrectly filed expense claims - were a violation of company policy.

So when his superiors suspected that this was the case, they interviewed him before taking any formal disciplinary action.

And this is where it gets tricky. Are companies allowed to sit someone down - even if they are suspected of essentially stealing from the company to buy personal items - and ask them outright if they’re an alcoholic?

 Can you ask an employee if they have a drink problem?

So, during the interview with the employee in question he was asked not only about his company credit card usage and his forged expense reports but also about his drinking habits - and whether or not he had an alcohol problem.

As the interview wrapped up, the employee wrote and signed a statement stating that, yes, he would from time to time use his corporate card to purchase alcohol so that his wife wouldn’t see the liquor stores’ names and the sums of money on the joint bank account statement. 

What happened next? You’ve guessed it. He was fired the very next day.

And that’s the end of the story, right?

No, not quite. 

The employee took the company to court claiming that the organization was in violation of the Americans with Disabilities Act (ADA) due to the fact that the company had subjected him to illegal questions related to his disability - i.e. alcoholism.

Should the company not have questioned him about alcohol?

The ADA states that employers are not allowed to ask an employee if they have a disability. They are also prohibited from questioning the severity, or even the nature, of that disability -  unless the questioning can be proven to be related to the job and fundamental to the business.

So the company is in the wrong?

Well, in order to pursue a successful claim of this nature, an employee must prove that the line of questioning caused him or her injury. And no, not just hurt feelings - a tangible injury.

So in our case, the employee was asked by the court to show that he had suffered physical harm due to the questions he was asked about his alcohol consumption. 

You may surmise that the employee lost his job - surely that counts as tangible harm? But did he lose his job because he was asked about him potentially having a drinking problem, thus causing him harm? 

Or was he terminated due to another reason?

In this case, yes, the employee was indeed asked a set of disability-related questions - but it was not these questions that resulted in his firing. 

Remember that written and signed statement the employee handed in in his interview when questioned about the corporate card usage? He also admitted to using the card for personal reasons - i.e. buying wine, beer, vodka, or whatever his tipple of choice was.

This in itself was enough to terminate the employment. And the employer won the case.

So where does this leave your organization?

What do you do if you suspect an employee has a drink problem?

Your employee might not necessarily be using a corporate credit card to hide their addiction, but what happens if someone is regularly coming to work late and smelling of alcohol, is drinking on the job, or is missing appointments because they’re hungover or drunk?

How can you handle it without the courts getting involved?

The main thing to remember is to be very careful with your line of questioning.

Keep in mind that alcoholism is a disability and as such falls under the ADA’s definition of disability. You should therefore most definitely avoid any questions such as:

• “Are you an alcoholic?”
• “Do you have a problem with drinking?”
• “Do you drink every day?”
• “How much do you drink?”
• “Do you need alcohol to get you through the day?”
• “Have you drunk alcohol today?”
• “Are you drunk now?”

In a nutshell, disciplinary action should only be undertaken in the event that an employee is performing poorly. This may be as a result of their drinking problem, but you will be in violation of the ADA if you mention this.

Therefore, only take negative action based on performance or the breaking of rules or company ethics etc and do not bring an employee’s alcohol problem - their disability - into the picture.

How to help an employee with alcoholism

In this type of scenario, as with any other disability, the onus is on the employee to speak to their employer, disclose the disability and request to be accommodated. 

This enables you both to sit down and have an honest conversation about what can be done to make their time at work easier for them, in view of their disability. 

Crucially, however, while the aim is to figure out how to help the employee to do their job, the solution should not negatively impact upon the company.

So what might this help look like? Consider:

• Allowing a period of time off for the employee to stay at a treatment facility
• Allowing a flexible schedule that lets the employee attend AA meetings

Providing the employee doesn’t take advantage of this time off or rejigging of schedules and use that time to drink, both the ADA and the Family and Medical Leave Act may protect them.

However, being accommodating does not excuse someone who has an alcohol problem from drinking at work or while they’re on the job. In which case, if you don’t already have something written into your policies about alcohol usage at work, you might want to consider it.

Indeed, whether someone is an alcoholic or not, you have the right to invoke your organization’s rules and policies.