Some of the provisions of the Second Chance/Last Chance Agreement may look like the following, as you can see below. In accordance with the company`s drug-free workplace policy, the employee listed below has tested positive for drugs or alcohol prescribed by the company. The Company will allow the Employee to continue to be employed by the Company on the basis of this Second Chance Agreement, which requires the following: An employer may choose to do so, but is not required by the ADA, to offer a “fixed choice” or “last chance agreement” to an employee who is otherwise for poor performance or misconduct due to alcohol or drug abuse. Typically, as part of a “fixed choice” or “last chance agreement,” an employer agrees not to fire the employee in exchange for an employee`s consent, to receive drug treatment, to abstain from more alcohol or drug use, and to avoid other workplace problems. Violation of such an agreement usually justifies dismissal because the employee did not meet the conditions to continue working. As an alternative to dismissal, employers who face violations of employees` drug or alcohol policies sometimes want to give that person a second chance. Typically, this process involves a commitment on the part of the employee to seek treatment or counseling for substance abuse, as well as a promise not to engage in further abuse, often supported by random testing. The agreement must include a summary of violations of the employee`s behavior and performance and cite the company`s policies that have been violated. A summary of progressive discipline that the employee has received may also be attached, or if the employer has kept detailed personnel records, these may be referenced. For employees whose drug addiction is associated with alcoholism or who are recovering from illegal drug use, the Americans with Disabilities Act expands protection against discrimination in addition to housing requirements. In some cases, employees argued that the ADA does not allow employers to impose special conditions on them, such as .
B a `last chance` agreement which includes terms and conditions of employment which are not required of other workers. Employers using faint hope agreements should understand that they are not a substitute for the ADA`s obligation to make reasonable arrangements. If the employer gives a second chance, it should be prepared to respond to requests for leave to participate in rehabilitation, 12-step programs or otherwise. The employee agrees to document his or her enrolment in a counselling or addiction treatment program no later than one week after the date of this agreement. All costs of a treatment consultation or treatment program are the responsibility of the employee. In this section, the employer specifies what happens if the employee does not comply with all the terms of the agreement. As a general rule, the consequence is immediate dismissal, unless the employee has a valid reason for non-compliance. For example, if the employee signs a medical clearance so that the employer can receive progress reports, but the facility does not provide them, this could be a valid reason for non-compliance. Should an employer offer a “firm choice” or “last chance agreement” to an employee who might otherwise be fired for poor performance or misconduct due to alcohol or drug abuse? The agreement should specify exactly what the employee must do to maintain their workplace. For drug and alcohol problems, the employer often requires the employee to complete a drug or alcohol rehabilitation program, provide regular progress reports or medical clearance to contact the rehabilitation facility directly, and conduct regular drug or alcohol testing when the employee returns to work. Under the ADA, employers are discouraged from dictating the medical treatment of employees. However, a faint hope agreement is an exception to this rule; Employers have more flexibility because they offer to suspend dismissals or other disciplinary measures if they do not have to.
The federal courts and the EEOC have rejected these allegations, finding that the appropriate faint hope agreements are consistent with workers` rights under the ADA. Although alcoholism and drug recovery are ADA disabilities, agreements are imposed as a result of employee misconduct and not because of disability. The employee always has the choice not to sign the agreement, knowing that the consequence is disciplinary measures consistent with those of any employee who violates the drug and alcohol policy. Instead of terminating the employment of an employee who has tested positive for illicit substances or alcohol, this company (employer) offers the employee one last opportunity to agree to comply with all company policies and practices. Assuming that the employee complies with all the terms of the last chance agreement and returns to work and fully adheres to the company`s policies for a period of time, he should eventually be exempted from the terms of the agreement and treated in the same way as other employees. .