By BARBARA PINCKNEY
The Business Review (Albany)

In nearly 20 years of representing employers, John Higgins has seen few workplace issues as thorny as drug-and-alcohol addiction.

"They are the most difficult, intractable problems," said Higgins, an attorney with the Albany office of Nixon Peabody.

While the state Human Rights Law, the federal Americans with Disabilities Act and other statutes provide direction on what employers may and may not do, the reality can be far more complicated. There are relationships and emotions involved, and economic consequences for both the worker and the employer. And no matter what a law, union contract or employee handbook might say about how these things should be handled, no two cases are the same.

"There are a million variables," said Richard Rowley, a labor lawyer with Cooper Erving & Savage in Albany. "I've handled lots of arbitrations over the years, and every case goes on its own factors."

According to a recent survey by the Substance Abuse and Mental Health Services Administration, an arm of the U.S. Department of Health & Human Services, 8.2 percent of adult full-time workers - one in 12 - admitted to illicit drug use in the previous month. The highest rates were in the food-service, construction and arts industries.

U.S. Department of Labor statistics show that 3 percent of workers actually used illicit drugs before reporting to their job or during work hours, while 7 percent drank alcohol during the workday.

The DOL estimates that workplace drug use costs employers up to $100 billion annually in lost productivity, accidents, and health-care and workers' compensation costs. Two-thirds of workplace accidents involve drugs or alcohol.

State law and the ADA are in close agreement about what an employer can do about a substance abuser. The rules differ based on whether the substance is a drug or alcohol.

When it comes to drugs, the ADA states, "the term ‘qualified individual with a disability' shall not include any employee or applicant who is currently engaging in the illegal use of drugs."

In other words, if you use drugs at work, "the employer has the absolute right to fire you on the spot," Higgins said. "You are not protected in any way."

However, state and federal laws protect workers who are in, or have completed, a supervised drug-rehabilitation program and who no longer engage in drug use. Employers may use drug testing, random or otherwise, to make sure workers are drug-free.

Barbara McCandless, vice president of human resources for Northeast Health, said the Troy-based hospital and nursing-home operator administers drug tests to people after they have accepted a job, but before they start. After that, "We test based on reasonable suspicion." Those found to have illegal drugs in their systems are immediately dismissed, but may return to the job if they undergo treatment and thus come under ADA protection.

As for alcohol, the ADA states that "an alcoholic is a person with a disability and is protected ... if he or she is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic."

That does not mean that employers should allow drinking on the job. What they must do is adjust the work schedule to allow for treatment and support meetings.

McCandless said that an Northeast Health worker who abuses alcohol is suspended for five days and then made to enter treatment.

State and federal law says employers should hold substance abusers to the same performance standards as anyone else.

"You don't have to treat them with kid gloves," Higgins said.

He recommends that employers always base a firing or disciplinary action on a worker's underlying conduct.

"If things like job performance, time and attendance, and personal conduct are applied consistently across the board to all employees, you should be OK," he said.

When workers are unionized, what an employer may and may not do is subject to the terms of a collective-bargaining agreement. Employers may need stronger grounds to demand a drug test or discipline a worker, and will face arbitration if someone is fired. Rowley, who has spent much of his career representing unionized workers, recommends "progressive discipline."

An employee who is late a few times may be given a warning. A few more tardy appearances may lead to a written reprimand. If the pattern continues, the worker may be forced to take a few days off without pay, and then maybe a week off without pay, until dismissal is the only option.

"Most employers are too impatient; they don't want to take the time," Rowley said. "But when it comes to an arbitration situation, if you're able to show that patience and progressive discipline and attempt to allow the person to correct their behavior, the arbitrator will likely sustain the firing. From the employer's point of view, it's a chance to save an employee who's worth saving."

While employers may be legally able to fire a worker who uses illicit drugs or drinks on the job, that is not always what happens.

"By and large, employers ... don't want to shun workers," said Robert Doherty, executive director of St. Peter's Addiction Recovery Center in Albany. "It costs them money to hire and train someone new."

Doherty said many employers feel shy about discussing a drug or alcohol problem with a worker when they should feel obligated and entitled.

"You have to state your concerns clearly, ... then you must be clear about your expectations: ‘I want you to get treatment.' Then state clearly what will happen if they don't do as you say. Is their job at stake? Be firm.

"The key is to think about the conversation before you have it so you're not manipulated into not having it," Doherty said.