When can you ask an employee if s/he has a problem with alcohol?
The answer is almost never. But, one company recently dodged a major bullet after asking an employee whether he had a drinking problem and questions about his drinking in general.
Using the corporate card to hide alcohol-related charges from the wife.
This recent federal court decision involved an employee who traveled often for work. This employee had a corporate credit card, which he used for business expenses incurred during that travel.
Now, the company had an expense reimbursement policy. And, based on the employee’s credit card expense reports, the company suspected that the employee was using the corporate card for personal purchases. So, the company investigated. Based on the company’s investigation, it concluded that the employee was using his corporate card for personal purchases and then covering it up on his expense reports. Both violated company policy.
Before taking any formal action, the company interviewed the employee. During the interview, the company asked the employee several questions related to his expense reports and his corporate card usage. They also asked him whether he had a drinking problem and questions about his drinking in general. Indeed, the interview included a bunch of questions about the employee’s drinking habits. Towards the conclusion of the interview, the employee wrote a statement acknowledging that he would sometimes use his corporate card to hide alcohol-related charges from his wife. The next day, the company terminated the employee.
Eventually, the employee became the plaintiff and the company became the defendant in an Americans with Disabilities Act lawsuit.
Part of the plaintiff’s claim was that the company violated the ADA by subjecting him to prohibited disability-related inquiries.
Did the company’s questioning go too far?
Under the ADA, an employer cannot inquire about whether an employee has a disability or as to the nature or severity of
the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. However, to sustain a claim like this, the employee must show that the prohibited inquiries caused a tangible injury.
In this case, the plaintiff had to show that the questions about his alcohol consumption harmed him. Yes, the plaintiff did lose his job. But, was it because of the alcohol-related inquiries or something else? I think it was something else. So, did the court:
[E]ven if the questions posed to [the plaintiff] were disability-related inquiries, the inquiries did not cause his termination. [The plaintiff’s] written statement acknowledged that he used his corporate card for personal use, and the jury could have found that this admission by itself was the reason for his termination. Further, [the defendant] submitted extensive evidence throughout the trial highlighting what the relevant … decisionmakers knew regarding [the plaintiff’s] corporate card use and the significant discrepancies between what [the plaintiff] purchased with his corporate card and what his expense reports indicated. The relevant decisionmakers also testified that the decision to terminate [the plaintiff] was not based on his interview and was made before the interview even occurred.
Tips for employers.
But, for the rest of you. Avoid questions at work like, “Are you an alcoholic?” “How often do you drink?” How much do you drink?” Basically, the type of questions that the defendant asked the plaintiff.
Remember that alcoholism is a disability. And if you take adverse action based on that disability (as opposed to an employee’s poor performance or rules violations based on the disability), your business may end up a defendant in an ADA lawsuit too.
And you’ll lose.