DWZ – Drinking While Zooming (And Other Telework Dilemmas)

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

April 29, 2020

By now we probably all have seen the YouTube Video of poor Danny, who finished his Zoom video meeting with his colleagues and forgot to end the call as he walked away from the screen, his colorful boxer short underwear in plain sight (along with his backscratching stretch to loosen his muscles).  Or the son of the late Steve Reeve of Superman fame (Will), a reporter who was spied at the end of a news piece he broadcasted from home without any suit pants! Ah, Danny and Will! But, other things are happening while employees work from home that raise concerns.  For example, the employee who during a conference call is slurring his speech as if intoxicated.

Drinking on the job is never okay (alright – there is the sommelier exception). But sending an employee for a test is not an option here, with employees working from home and having the opportunity to drink or use drugs recreationally (especially marijuana in these more liberal times). So what to do?

Confronting the employee about the suspicion and asking for an explanation is critical (slurred speech may be signs of intoxication, or something minor – say a bee sting of the tongue- or something more serious, like a stroke). Considering context also is important; has the employee been warned before about being impaired on the job, or has the employee had a problem with alcohol or drug addiction in the past of which the company is aware? The Americans with Disabilities Act treats alcoholism as a disability, but not current use of illegal drugs. The EEOC tells us that regardless, employers need not tolerate on-the-job intoxication. See this, question and answer 12.

If the employee confesses to intoxication (unlikely – unlike with Danny the evidence is not apparent) what is the outcome?  It may be a warning for a first infraction (“you may be at home Danny, but if you are on the job you have to refrain until the workday is done”). If it is “more of the same” you may decide to suspend or terminate because there are consequences for disregarding appropriate directives. (If the employee denies and you are convinced he is lying, you may terminate if you want to do that; terminating someone because you believe in good faith that they were untruthful may, in hindsight, prove to be unfair if they were not lying, but the motive is not illegal).

However, with your employee struggling with alcohol, it might be appropriate to provide another chance to reform given that the relapse may be related to the stress of the pandemic and associated isolation. Although employers need not accept on-the-job drinking under the ADA, employers also may offer second chances, understanding that doing so means the employer is accepting the risk of more difficulties to come with an ADA-protected individual).

Retaining an employee who has relapsed should not be done lightly or unconditionally. Conditions on continued employment could in this instance include a mandatory referral to EAP or available treatment (a challenge given the government lockdown orders). An employee who is proving unable to remain sober during the workday also could justifiably be placed on unpaid leave (or could be offered furlough to the extent that the employer might want to afford the employee that option, which is “better” these days with the extra $600 per week benefit from the fed).

However, any action taken must be done with the “long view” in mind. That is, how likely is it that this employee can be salvaged (because if the prospects are dim, an early exit may be best)?  What precedent is being set for future situations (and can the employer think of distinctions, like long tenure or extraordinary circumstances, that would make this situation distinguishable)? Being thoughtful on the “front end” saves you from unwittingly feeling locked in on the “back end.”

And speaking of back/rear ends, whatever you do, for God’s sake get dressed – fully dressed – for work!!