Voluntary Leave Policy, Quirky Question # 35

Quirky Question # 35:

I am the HR Director for a large company with operations in Alaska.  Our Alaska-based employees work on a rotating schedule of two weeks on / two weeks off.  Many of these employees commute from the Outside (Lower 48) for their two-week rotations.  During their rotation, these employees live in company provided housing and are transported to the work site via company provided transportation.  For job safety reasons, our company has a zero-tolerance drug and alcohol policy.  Employees who report to work with a detectable level of drugs or alcohol in their system are terminated.

Recently, one of our new mechanical engineers from the Outside showed up at the bus stop intoxicated.  At his co-workers’ urging he wisely opted not to get on the bus and simply did not report to work.  The next day, he advised his supervisor that he may have a problem with alcohol and that he would be seeking treatment when he returned home at the end of the week.  He is now advising us that he cannot return to the work site for his next rotation due to his doctor’s advice.

This employee does not yet qualify for FMLA leave, but our drug and alcohol policy does encourage employees to seek assistance for drug or alcohol abuse and indicates that employees who come forward voluntarily will not be penalized.  We obviously want to encourage employees to get help if they need it, and we are willing to let this employee forgo his next rotation, but how much leave (if any) are we required to give him?  We are already short staffed as it is and his absence is making things even more difficult.

[Set forth below is our analysis of Quirky Question # 35.  As this was a question submitted to the employment attorneys in our Anchorage, Alaska office, our colleagues there provided the analysis.  The response below was furnished by Wendy E. Leukuma.  Wendy is a 1999 graduate of Northern Michigan University and a 2002 graduate of William Mitchell College of Law.  If you would like to communicate with her about the question and analysis below, or any other employment law issue, her direct line is 907.257.7826 and her email address is leukuma.wendy@dorsey.com.  Wendy’s resume is displayed at www.dorsey.com.]

Wendy’s Analysis:

Arguably, your fact pattern illustrates the maxim, “No good deed goes unpunished.”  Your company appears to have a generous policy, designed to assist employees to obtain necessary treatment for drug or alcohol abuse.  As you recognize, however, at times your policies may collide with your need to have a reliable workforce.

Since your employee does not yet qualify for Family and Medical Act (FMLA) leave, his entitlement to leave depends on your company’s policies and on whether he is entitled to a reasonable accommodation under the Americans With Disabilities Act (ADA) or Alaska’s non-discrimination laws.

With respect to your companies’ policies and procedures, at a minimum, the employee’s request for leave should be treated like any other non-FMLA request for leave. If you routinely permit employees to take several weeks’ vacation in a row without penalty, you should permit this employee to do the same for purposes of seeking treatment.  In addition, the employee should be permitted to exhaust any available paid leave such as vacation, PTO, or sick leave while in treatment.  Of course, you do not have to take his word for it. You should (for liability reasons alone) require him to provide proof that he is obtaining treatment and that he is making satisfactory progress.

Because your policy specifies that employees who voluntarily seek treatment will not be penalized, it is important that you not terminate this employee simply because he needs to take leave.  Rather, any decision to terminate should be based on the hardship caused by granting such leave.  Since your company is already short-staffed, you may be in a situation where you have several vacant mechanical engineer positions.  If that is the case, you should certainly fill these positions before terminating this employee.  Otherwise, you may have a hard time justifying his termination under your company’s drug and alcohol policy.

You also may wish to consider your past practices with respect to allowing other non-FMLA-qualifying employees time off for drug and alcohol treatment.  What have you done in the past?  How often?  How much time have you allowed the other employees to take off?  Were your company’s economic circumstances different in the past (e.g., not so short-staffed)?  Exploring these inquiries should help you evaluate two different issues. First, as described below, gathering data in response to these questions will enable you to better assess the issue of whether your firm will be able to establish an undue hardship if the employee’s leave becomes prolonged. Second, it will be important for you to understand whether this employee will be able to make any argument, legitimate or otherwise, that he is experiencing differential treatment with respect to your company’s enforcement of this policy.  For example, if you have had several Caucasian employees take leave under your drug and alcohol and this employee is a minority, he may be able to make an argument that he is experiencing race or ethnicity based differential treatment.  Assuming that your examination of these issues does not flag any concerns for you, you still have to assess whether your employee has any rights under the ADA.

Regardless of your specific company policies, under the ADA, most employers with 15 or more employees are required to provide reasonable accommodation, including unpaid leave, to disabled employees who are able to perform the essential functions of their job with or without accommodation.  Under Alaska law, Alaska employers with one or more employees are required to provide such accommodations.  Accordingly, if this employee is a recovering alcoholic, he may be entitled to additional leave, so long as it does not create a hardship for your company.  In the context of a drug or alcohol addiction, 28 days of leave for treatment is traditionally considered the normal amount of time required.  Absent significant operational concerns, courts are sometimes reluctant to find a hardship where the employee is absent from work fora month or less.  (In fact, as will be addressed in other Blog postings, courts increasingly have been granting protracted leaves as an accommodation to provide employees an opportunity to address physical or mental health issues that are precluding them from continued gainful employment.)

Here, given your employee’s rotating shift, it appears as though he will be absent from the workforce for a minimum of six weeks before his next rotation.  In most cases, this amount of time should be sufficient for the employee to seek and obtain any treatment necessary.  Additional requests for leave from this employee should be evaluated on a case by case basis to determine whether the individual is truly disabled within the meaning of the ADA and if so, whether your company can accommodate his request for leave without undue hardship. Under the ADA, you may interact with his medical provider to determine the answers to these questions.  The information you obtain from your employee’s medical provider also may shed light on whether your company is likely to be able to work out a solution to this situation that fulfills the needs of your company and your employee alike.

Dorsey & Whitney

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