dumb & dumber: showing up to work under the...

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