• When an employee violates a company’s substance abuse policy, a last-chance agreement may be offered.
• Under ADA regulations, employers must provide employees in recovery with reasonable accommodations such as flexibility to attend recovery group meetings.
• If an employee is absent from work for rehabilitation, do not discuss this with other workers.

A last chance agreement, sometimes called a “firm choice” agreement, gives an employee who is in recovery from substance addiction the opportunity to keep a job in exchange for agreeing to meet certain conditions. An employee’s job is often contingent upon successful completion of a substance abuse treatment program. The consequence for violating the last-chance agreement is usually termination.

The employer can work with the program provider to determine how to best support the employee’s sobriety. This may include developing a return-to-work agreement with a number of unannounced drug or alcohol tests conducted in compliance with state and federal laws.

This type of agreement can help an employer keep a valuable employee while making the employee aware of the consequences of another policy violation. As every situation is different, employers may wish to check with legal counsel to address the details of the agreement.

The agreement often includes:

• A summary of the violations or progressive discipline the employee received;
• What an employee must do to remain employed, including successful completion of a recovery program and passing regular drug/alcohol tests;
• The consequences for violation of the agreement; and
• The date of the agreement, the expiration date of the agreement, and signatures.

Although random drug and alcohol testing may be restricted by state laws or privacy provisions of a state constitution, random tests may be allowed under a last-chance agreement.

Avoiding discrimination

If a last-chance agreement is offered to employees, an employer should make sure it is offered consistently to lower the risk for a discrimination claim.

If the employer decides to offer the agreement to some employees but not others, document the reason for the selection. It could be based on years of service, the employee’s position, or another non-discriminatory factor (which doesn’t involve an employee’s age, race, religion, or sex, for example).

Keeping treatment information confidential

Coworkers may be curious about an employee’s absence while the worker is attending a treatment program, but the ADA’s confidentiality provisions do not allow employers to discuss the situation with them.

The ADA requires employers to keep all employee medical information confidential except in situations where employees have a business need to know the information.

If questions from coworkers arise about an individual’s accommodation for substance abuse treatment, managers should be trained to respond in a way that respects the employee’s privacy and complies with the ADA’s confidentiality provisions.

Coworkers may wonder if the employee is getting special treatment or whether the individual is meeting work standards. A supervisor can reassure coworkers that the employee is meeting work requirements. In addition, the supervisor can state that one employee’s situation cannot be discussed with others to protect the privacy of all employees.