Alcoholic employee refuses to take FMLA -- can we fire him?

We have an employee who has been with the company since 1990. For the most part he has been a good employee and receives many positive comments from clients and fellow employees. He has not demonstrated an attendance pattern or abuse of attendance. During the past 8 years, however, he has gone "off the wagon" 4 times. The 4th just occurred. Typically he goes off over the weekend and then either he or his wife calls in to say he has checked himself into rehab. He is then out approximately 2 weeks. Since he is generally able to perform the essential functions of his job and he is trying to be a recovering alcoholic, I would presume that he is protected under ADA as having a disability.

The last occurrence it was suggested he take a short term disability leave of absence and his entire absence would also be covered by FMLA. The employee refused. He did not take a short term leave of absence nor did he complete the forms for FMLA. He requested and was given vacation time for this period of absence.

Is the employer obligated to count the absence as a FMLA absence regardless of the employee's desire and in the absence of any medical documentation? Can the employee be terminated? This is the bigger issue since the owner of the company wants the employee discharged. I don't believe we have grounds for discharge and I don't wish to be a part of it. What would my liability be as the HR Manager and how should I document my concerns and lack of support for this action?

Rita Risser's Response:

You're right that the employee is protected under the ADA. If we just look at that law without the FMLA, you know you have to reasonably accommodate the employee's efforts at rehabilitation. Taking two weeks off on average every two years does not seem like it would create an undue hardship on most employers. Granted, the time off comes unexpectedly, but that's the nature of the disability. So I believe firing him for this at this time could be a violation of the ADA.

There are some cases that support firing upon relapse if the employee is given a last chance warning. However, many of those cases involved employees in safety-sensitive positions where relapse could create an undue hardship on the employer. Therefore, I would not recommend termination without having an attorney take a good look at all the facts.

On the FMLA issue, you may have closed off your options by granting him vacation. Many employers do not allow unplanned "vacations" such as this. If you were to have such a policy in the future, then the employee would have to request FMLA and provide documentation. If the employee refused to request FMLA, on your books he would be away without leave and subject to termination. But in this particular case, because of the ADA issues above, I do not recommend that.

Your liability as HR manager depends on the law of your state or circuit. Some courts have held responsible managers personally liable, others have not. I would advise writing a very professional letter to the owner simply confirming your advice not to terminate and his directive ordering you to do so. Keep a copy for later use.

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