Management Counsel

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Kaitlyn E. Hutcherson

Woolf, McClane, Bright, Allen & Carpenter, PLLC

DRY JANUARY: ALCOHOL USE AWARENESS

“Dry January” refers to the practice of abstaining from alcohol during the month of January and has become a well-known tradition for many. Dry January emerged in recent years as a way to reset one’s mind and provide a fresh and focused start to the new year. Many people find Dry January a useful practice to help manage the anxiety and stress that often follows the busy holiday season and to consciously cut back on alcohol consumption that may have increased during holiday festivities.

But, while some individuals partake in Dry January, other individuals may be struggling with alcohol use. In fact, the American Bar Association (“ABA”) reported in January 2021 that as many as one in five attorneys abuse alcohol, a rate higher than most other professions.1 With the ongoing COVID-19 pandemic and the added pressures of the holiday season, employees may be experiencing increased feelings of stress, anxiety, depression, and even fear, which can lead to and/or exacerbate alcohol use disorders. Now is a good time for firms to review the laws applicable to alcoholism and alcohol use in the workplace and to consider available resources in the community.

Employers in Tennessee may establish and enforce company policies that prohibit the use of alcohol in the workplace and while performing work on behalf of the company. Employers should recognize, however, that alcoholism is often recognized as a disability under the Americans with Disabilities Act (the “ADA”), which can trigger certain obligations and responsibilities for the employer. According to the Equal Employment Opportunity Commission’s (“EEOC”) Technical Assistance Manual: Title I of the ADA: [A] person who currently uses alcohol is not automatically denied protection simply because of the alcohol use. An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not “qualified.”2

As a result, employers covered by the ADA may be required to engage in the interactive process to determine if an employee struggling with alcohol use is entitled to a reasonable accommodation under the law. For example, an employee who voluntarily reports to the company that he/she is experiencing a relapse and abusing alcohol may be entitled to a period of unpaid leave to pursue rehabilitation as a reasonable accommodation under the ADA.

Employers who choose to become a certified member of the Tennessee Drug-Free Workplace Program may have additional legal obligations regarding the use of alcohol by employees. The Tennessee Drug-Free Workplace Program Model Substance Abuse Policy provides that covered employers must either implement an Employee Assistance Program, which is a confidential workplace service that assists employees with problems including substance abuse, or publish a directory of substance abuse treatment providers in the community.3 The Tennessee Drug-Free Workplace Program further provides that covered employers shall not take disciplinary action against an employee “solely” upon the employee’s first voluntary request to receive treatment for alcohol use disorder, if the employee has not previously tested positive for alcohol use and is not being sent for alcohol testing under reasonable suspicion or post-accident.4 Even where not required by law, law firms and other employers in the legal profession have begun prioritizing the prevention and treatment of alcohol use disorder in the legal profession. In 2018, the ABA initiated the Well-Being Campaign, which aims to help support healthy work environments and provides practical guidance for addressing alcohol abuse in the profession and the workplace.5 The Knoxville Bar Association provides similar wellness resources, including, but not limited to, its confidential lawyer assistance program, its annual Wellness Conference, and its library of Health & Wellness Center resources.

With the start of a new year, you may find that now is a good time to assess the work environment in your office, review the available resources in the community, and join a growing number of employers in the legal profession that are seeking to identify, treat, and prevent alcohol use disorder by prioritizing and supporting employee health and well-being.

If you are a member of the legal profession and are struggling with alcohol use, you may contact the ABA’s Lawyer Assistance Program, or if you are a member of the KBA you may contact the KBA’s Lawyers Concerned for Lawyers Program, which is a free and confidential program that aids in identifying, treating, and recovering from alcohol use disorder.

1 The American Bar Association, Alcohol Use Disorders, (January 13, 2021), https:// www.americanbar.org/groups/lawyer_assistance/resources/alcohol_abuse_ dependence/. 2 Equal Employment Opportunity Commission, Technical Assistance Manual: Title I of the ADA, (January 1992). 3 Tennessee Department of Labor & Workforce Development, Sample Substance Abuse Policy Development Instruction, https://www.tn.gov/content/dam/tn/ workforce/documents/injuries/Sample_Substance_Abuse_Policy_Statement_ DFWP.pdf; Tenn. Code Ann. § 50-9-105(a)(6). 4 Rules of Tennessee Department of Labor Division of Workers’ Compensation, Chapter 0800-02-12 Drug Free Workplace Programs, Rule 0800-02-12-.9: Employee Protection (2018), available at https://publications.tnsosfiles.com/ rules/0800/0800.htm; Tenn. Code Ann. § 50-9-107(e). 5 American Bar Association, Well-Being in the Legal Profession: Well-Being Pledge Campaign, https://www.americanbar.org/groups/lawyer_assistance/well-being-inthe-legal-profession/.

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646.