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The 'Last Chance Agreement'

By Christopher J. Collins

Coping with employee drug and alcohol abuse, and its inevitably harmful effects on the workplace, remains a significant problem facing employers today. According to the U.S. Department of Labor (DOL), more than 14 million Americans use illegal drugs. The numbers for alcohol abuse are equally staggering, with more than 12 million Americans classified as heavy drinkers. See www.dol.gov/asp/programs/drugs/workingpartners/stats. According to the DOL, “most individuals who abuse alcohol and other drugs are employed,” and, as any manager or human resources professional can attest, “when they arrive for work, they don't leave their problems outside the door.” Id.

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.

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