Dead Drunk–Part 2
Unfortunately, Nick and Derrick's supervisor were a day late and a dollar short with their help for Derrick. We question the supervisor's statement that there were no prior indications of alcohol abuse. It is truly rare that someone in Derrick's advanced stage of decline would not manifest some detectable signs. More often than not, it is easier for management to ignore or avoid such situations–particularly when absenteeism and performance are not serious issues–than to engage in constructive confrontation.
An employee assistance program may have prevented this situation by training Nick and Derrick's supervisor to identify and intervene at an earlier point when Derrick may have been more open to help. The program may also have made self-help available to Derrick and trained co-workers in identifying and referring substance abusers. Nevertheless, given the situation, Nick could have required a second, independent medical evaluation. This action would have determined whether Derrick was really ill or attempting to fraudulently collect disability benefits.
It appears that the policies and procedures of this company contributed to the creation of this situation. First, prior notice of layoffs always creates the potential for such problems as sabotage and fake disabilities. A safer practice is layoff notifications and immediate termination.
Second, the company should immediately change its eligibility for disability. Disability benefits should end with notification of termination. Such a policy avoids employee temptations to fraudulently obtain benefits as they go out the door.
Most employee benefit policies today do not permit human resources or a corporate official to dictate the actions or treatment of employees. If on-the-job performance is deteriorating, they are allowed to intervene and declare certain expectations and set certain goals. But in this particular case, if the physician certified that Derrick was "totally disabled" from performing the primary duties of the job for a period of time and is unable to perform any similar job for which he was reasonably qualified, then Derrick would be eligible (under most company benefit plans) for long-term disability coverage.
The attorney in this case would need to consider any precedents by examining past management actions regarding other disabled participants in the company's benefit plans. If the company established certain guidelines setting forth management's ability to intervene and direct treatment, then they may have been able to dictate a course of treatment. Moreover, Derrick would be considered disabled under the Americans with Disabilities Act. Thus, under provisions of this act, Derrick would be afforded "like" consideration as other individuals at this company.
We would advise Nick that he should not take responsibility for Derrick's behavior. Derrick's doctor may have suggested treatment; we'll never know. Derrick's death is his own responsibility. Even with interventions such as EAPs and independent medical evaluations, people are still responsible for their own actions. Nick and the company provided help and tried several times to get Derrick to accept the help. Nick needs to let go and, for the future, concentrate on ensuring that managers and employees are fully aware of the EAP and other company assistance.
Perhaps the thorniest employee relations issues arise in the context of physical and mental problems, especially when the disability is alcoholism. Intertwined with an employer's sick leave, short-term disability, and long-term disability programs are a plethora of laws with overlapping and concurrent provisions applicable to disabled employees, which have added to the employers' dilemma. To complicate matters further, some employees abuse the laws and policies designed to protect the genuinely disabled, and attempt to use the disability laws as a way to obtain guaranteed job security or compensation when they are not entitled to it.
Nick's quandary illustrates why we advise clients not to announce a layoff in advance. All too often, employees who know they will be laid off just happen to suffer on-the-job injuries and file workers' compensation claims. Other employees have been known to sabotage equipment, disrupt production schedules, destroy computer files, or abscond with customer lists and/or other confidential or proprietary documents in the period prior to their layoff. To avoid these problems, it is generally preferable to provide some pay in lieu of notice.
Finally, employers who anticipate large layoffs should consult with counsel as to their obligations under the Worker Adjustment and Retraining Notification Act (WARN) or similar state "plant closing laws." Mass layoffs and facility shutdowns often trigger the application of such laws.
Alcoholism is a protected disability under the ADA (and usually under state disability laws) warranting reasonable accommodation. However, the decision to lay off Derrick and the other 12 employees was made before the company knew Derrick was disabled. The layoff was based on business needs, and was not a pretext to discriminate against Derrick because of his alcoholism. Reasonable accommodation does not equate to guaranteed job security rights. Based on the facts of this story, had Derrick been laid off on the scheduled date in the same manner as the other 12 non-disabled employees, it is unlikely that Derrick could successfully sue the company for unlawful discrimination.