The 'Last Chance Agreement'

As if dealing with the impact of drugs and alcohol abuse in the workplace were not difficult enough, a plethora of federal, state and sometimes local laws are implicated. The Drug Free Workplace Act, 41 U.S.C. '701, et seq., requires certain federal contractors to maintain a drug-free workplace and establish a drug-free awareness program. Under the Americans with Disabilities Act (ADA), 42 U.S.C. '12101, et seq. , a drug addict who is not “currently” using illegal drugs (although what “currently” means is unclear) and an alcoholic may be considered disabled and therefore protected against discrimination based on their condition. Under the Family and Medical Leave Act (FMLA), 29 U.S.C. '2601, et seq., drug addiction or alcoholism might qualify as a “serious health condition” triggering application of the FMLA leave entitlement provisions. On top of this, a whole host of state and local laws analogous to the ADA and FMLA might apply.

Beyond navigating these often complex and overlapping laws, an employer might be reluctant to lose a valued employee who may be going through a difficult time and who, with appropriate support and assistance, could again become a useful contributor to the organization. Yet, employers cannot ignore the potential consequences of tolerating the effects of drug and alcohol abuse in the workplace. So the question becomes: How can an employer protect its workplace from the often harmful effects of employee drug and alcohol abuse, avoid accusations that it is discriminating against an employee because of a purported addiction disability, and, at the same time, help an employee who was once a valuable and productive contributor to become so again? The answer may lie in a carefully crafted “Last Chance Agreement.”