Dumb & Dumber: Show ing Up To Work Under The
Influence
ASBSD/ SASD Convention
August 9, 2019
SHOWING UP TO WORK UNDER THE INFLUENCE
1. What’s The Problem?
2. Addiction Under ADA
3. Tips for School Districts
WHAT’S THE PROBLEM?
■ National Study
■ 54 Million Adult Binge Drinkers
■ 80% Employed Full Time
WHAT’S THE PROBLEM?
■ 20 Million Adults
■ Substance Abuse Problems
■ 61% Employed Full Time
WHAT’S THE PROBLEM?
■ 9-10% of Full Time Workforce
■ Alcohol or Drug Problems
WHAT’S THE PROBLEM?
■ Diminished Job Performance
■ Absenteeism & Tardiness
■ Increased Medical/Workers’ Compensation Expenses
WHAT’S THE PROBLEM?
■ Increased Legal Liability
■ More Dangerous Workplaces
ALCOHOL & ADDICTIONUNDER THE ADA
■ Alcoholism & Addiction – Can Be A Disability Under ADA
■ Requires “Reasonable Accommodations”
■ Does Use Impact On-The-Job Conduct Or Performance Beyond What Can Be Reasonably Accommodated?
ALCOHOL & ADDICTIONUNDER THE ADA
■ Does Addiction “Substantially Limit A Major Life Activity”?
■ Ability to Walk, Talk, Think, Or Work As a Consequence of Addiction
■ Reasonable Accommodation – Attend AA Meeting Or Rehabilitation Program?
ALCOHOL & ADDICTIONUNDER THE ADA
Conduct v. Condition
ALCOHOL & ADDICTIONUNDER THE ADA
■ Scenario #1
■ High School Principal - Recovering Drug Addict
■ After Treatment – Drug-Free For 10 Years
ALCOHOL & ADDICTIONUNDER THE ADA
■ Began Using Again During Fall Semester
■ Admitted Using Before/After School
■ Violation Of School Policy
■ High School Principal Fired
ALCOHOL & ADDICTIONUNDER THE ADA
■ Lawsuit – Claimed ADA Violation
■ School Had Legitimate, Non-Discriminatory Reason to Fire
■ Violation of School Policy
ALCOHOL & ADDICTIONUNDER THE ADA
■ Came To School Under The Influence
■ Came To School Late
■ Left School Early
ALCOHOL & ADDICTIONUNDER THE ADA
■ Scenario #2
■ High School Physics Teacher - Recovering Alcoholic
■ History of Being Excellent Teacher
ALCOHOL & ADDICTIONUNDER THE ADA
■ Failed To Come To School For Five Days Because Of Alcohol Problem
■ School and Teacher Signed “Last Chance” Stipulation
ALCOHOL & ADDICTIONUNDER THE ADA
■ School Allowed Treatment - Failed To Come To School Again
■ Failed To Come To School After Treatment
■ Lawsuit – Claimed ADA Violation
ALCOHOL & ADDICTIONUNDER THE ADA
■ “ADA Does Not Require That School Tolerate Misconduct Due To Alcoholism –Nor Does It Protect Alcoholics From The Consequence Of Their Behavior”
■ School Provided “Reasonable Accommodations” When It Allowed Teacher To Seek Treatment
ALCOHOL & ADDITIONUNDER THE ADA
■ Scenario #3
■ BB Coach Told Principal That BB Coach Was Recovering Alcoholic
■ Before Conversation – High Performance Ratings – Well Regarded Coach
ALCOHOL & ADDICTIONUNDER THE ADA
■ After Conversation - “Incompetency” and “Unsatisfactory Performance”
■ Forced to Resign from School District
ALCOHOL & ADDICTIONUNDER THE ADA
■ Never Violated School Policy
■ School Based Decision on Disability
■ Employment Decision Discriminatory
TIPS FOR SCHOOL DISTRICTS
■ Proceed Cautiously
■ ADA May Apply If Employee
◌ Has A Drinking Or Drug Problem◌ Explains How Problem Impacts Ability
To Do Job◌ Wants To Seek Help
TIPS FOR SCHOOL DISTRICTS
■ Does Conduct Violate School Policy?
■ School Should Have Written Drug/Alcohol Policy
TIPS FOR SCHOOL DISTRICTS
■ Policy Allows Drug and Alcohol Testing for Employees
■ Reasonable Suspicion of Drug/Alcohol Use
■ Set Out How Searches Are Permitted Under District’s Privacy Policy
TIPS FOR SCHOOL DISTRICTS
■ Clear Prohibition Against Sale/Use of Drugs/Alcohol on School Property
■ Consequences of Positive Test for Drugs/Alcohol
TIPS FOR SCHOOL DISTRICTS
■ Investigation Needed?
■ Conducted by Human Resources, Outside Third Party, Legal Counsel
■ Supervisor Should Not Conduct Investigation
TIPS FOR SCHOOL DISTRICTS
■ Increases Likelihood of Retaliation by Supervisor or Allegations of Retaliation by Employee
■ Keep as Confidential as Possible
TIPS FOR SCHOOL DISTRICTS
■ Documenting Investigation
■ Document Any Complaints Or Concerns
■ Must Have Facts – Not Opinions
TIPS FOR SCHOOL DISTRICTS
■ Don’t Diagnose Or Make Presumptions About Possible Drug/Drinking Problem
■ Identify Behaviors And Document Observations
TIPS FOR SCHOOL DISTRICTS
■ Focus On Inability To Perform Essential Job Functions
■ Meet With Employee – After Situation is Documented and Details Established
■ Follow School’s Policies
TIPS FOR SCHOOL DISTRICTS
■ Testing For Drugs/Alcohol
■ Reasonable Suspicion Policy
■ Random Drug Testing Policy
TIPS FOR SCHOOL DISTRICTS
■ Alcohol Testing Policy
■ Consent To Testing?
Dumb & Dumber: Show ing Up To Work Under The
Influence
ASBSD/ SASD Convention
August 9, 2019