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Question Corner (August 2020)
August 25, 2020

Responding to pleas for help.

Q.   We have an employee who definitely showed signs of being on drugs or alcohol at work. We want to let him go per our handbook policies, but he has now stated he is getting help for his problem. Is he protected since he is going to seek help, or can we fire him because he broke company policy?

A. The Americans with Disabilities Act (ADA) permits employers to discipline an employee who violates a policy prohibiting the use of illegal drugs or alcohol at work. The ADA provides employers the same protection, even if the employee violating the policy has a substance abuse problem, like alcoholism or drug addiction. However, since the employee has notified you that he is seeking help for his problem prior to the company seeking to discipline him, you will need to proceed carefully.

If the violation was due to the current use of illegal drugs, and he is stating he is seeking help for this illegal drug use, you are under no obligation to provide a reasonable accommodation. Illegal drug use is not covered under the ADA. Under these conditions, you could move forward with the termination. 

However, if he stated he was seeking help for alcoholism, he may be protected, and you would need to ask if the employee believes an accommodation would prevent further violations of the policy. If so, you should begin an interactive process with him to determine if an accommodation is necessary to correct the problem. You will then need to discuss the connection between the alcoholism and the recent violation of the company policy. If an accommodation can be found that will not submit the company to an undue hardship while he gets the requested help, you will be required to work with him. At this point, if he is sincerely seeking help, you might want to enter into a “last chance agreement” with him, agreeing to continued employment and allowing him to receive substance abuse treatment in exchange for his agreement to refrain from further use of alcohol and avoiding further violations. 

Jason R. Mau is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or


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