Beware of Flying Objects–Part 2

Beware of Flying Objects–Part 2

taxicab

TaxiBeware of Flying Objects–Part 2

"I don't know the answer to that right now.  It's not completely my decision.  Let's just take things one step at a time," Matt said calmly.

Matt called Logan and told him that Adam admitted to the incident and may still be intoxicated.  Logan arranged for a cab and met with Matt and a security officer to escort Adam discreetly out of the building.  After a full investigation, Matt and Logan agreed to suspend Adam without pay for five days.  Adam willingly accepted the consequences of his actions and returned to work without further incident.

Panel:

Obviously, the organization's policies and past practices directed Logan's handling of this case.  Nevertheless, being drunk or violent are conditions rarely accepted by most companies.  Regardless of the outside issues that precipitated the incident, Logan should treat Adam's behavior as a workplace action for which he is fully accountable. 

A few of us contend that suspension without pay was acceptable because this was Adam's first offense.  We would, however, have also required him to undergo any treatment and follow-up counseling recommended by the employee assistance program.

Conversely, most of us feel that Logan was too lenient. To permit this type of incident to occur without severe penalties limits the company's ability to maintain control of conduct in its work environment and sets a bad precedent.  The next drunk employee who throws an coffee cup might not be a "good guy."  What does the company plan to do about him or her?

Adam freely admitted throwing the coffee cup at Tanesia.  He also acknowledged that his conduct was wrong and very dangerous.  Furthermore, he confessed to drinking the evening prior and appeared intoxicated during his meeting with his supervisor, which raises another issue.  Logan should have considered getting a measurement of Adam's blood alcohol content (BAC) immediately as an extra precaution. This action would prove whether or not Adam was truly intoxicated and, if so, would prevent him from denying it later.  We would expect that a BAC would be allowable because there was strong reason to believe (i.e., his confession) that he was drunk.

Rather than immediate suspension without pay, we recommend that Logan should have sent Adam home, with pay, until the investigation was completed.  This would include interviewing all reliable witnesses.  These procedures would have allowed Logan time to make a careful decision about the appropriate disciplinary action.  We applaud Logan's decision to send Adam home in a taxi. Even if the fare was $100, it would have been a potentially tragic mistake to let Adam drive and possibly hurt himself or someone else.  This was a small investment with a big payoff.

The case states that there were no further incidents between Adam and Tanesia, but there could have been.  If Tanesia were injured, that could leave the company vulnerable to a negligent retention claim since they were aware of Adam's propensity for violence.  (See legal comments in A Tussle Over Tinkle.)

We would also have followed up with Tanesia to make sure she felt safe.  As employers, we have an obligation to provide employees with a work environment that is free from harassment, intimidation, and physical danger.  We don't believe the company fully met its obligation in this case.

Legal:

This story highlights two troublesome problems that employers are faced with today:  workplace violence and alcohol impairment on the job.

By all reports, workplace violence is on the rise–domestic and romantic relationship problems are spilling over into the workplace, disgruntled and distraught employees who have lost a job or promotion are seeking revenge on managers and co-employees, and that's just to name a few.  One first step that employers can take is to conduct reference checks and criminal conviction records on applicants being considered for employment.  Moreover, employers need to establish policies and procedures for disciplinary action, up to and including discharge from employment, to deal with violent conduct on the job.

Violent outbursts on the job may raise issues under the Americans with Disabilities Act.  A person may be suffering from an emotional or mental impairment that manifests itself in violent outbursts–thus, such an individual may be disabled under the ADA and an employer's treatment of that individual must be responsive to ADA requirements.  However, personality traits such as poor judgment, a quick temper, or irresponsible behavior are not considered impairments under the ADA.  Likewise, if an individual is suffering from general stress because of his or her job or personal life, he or she will generally not be considered to have an emotional or mental impairment under the ADA.

Based on the information provided about Adam, it would appear that he does not meet the definition of mentally impaired under the ADA.  And, although there is no indication that Adam is an alcoholic, this story warrants a brief discussion on another ADA issue: alcoholism.

While an employee (or an applicant) who is currently engaging in the illegal use of drugs is not disabled under the ADA, a current alcoholic is a person with a disability under the ADA.  However, the ADA does not require that an employer excuse an alcoholic's behavior nor entitle the alcoholic to less stringent work rules.  Nor does the ADA prohibit employers from establishing policies requiring employees not to be under the influence of alcohol (or illegal drugs) while at work.  Thus, if a company has such a policy, it would not be unlawful under the ADA to take disciplinary action against an individual who was drunk on the job, even if that individual was an alcoholic.  Such disciplinary action would be based on the employee's conduct and not on the basis of his or her disability.  Moreover, an alcoholic person who cannot perform his or her job duties or whose employment presents a threat to the health or safety of others is not protected under the ADA.

However, because alcoholism is a disability under the ADA, an alcoholic may be entitled to an accommodation if he or she is qualified to perform the essential functions of a job; for example, allowing the employee to leave work early two days a week to attend AA meetings where the time can be made up on other days or providing the employee with a leave of absence to obtain treatment.

Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©

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