Question

Alex Bustamante is applying for the position of executive chef at the hospital where you serve as director of human resources. The hospital has more than 800 beds, and the meal service offered to patients and visitors alike is extensive. Patients in this facility are extremely ill, and because of their weakened condition, dietary concerns are an important consideration. While reviewing Mr. Bustamante’s work history with him during an interview, he states that he was let go from his two previous positions for “excessive absence.” When you inquire as to the cause of his excessive absence, Mr. Bustamante offers that it was due to the effects of alcoholism, a condition with which he has struggled for over 10 years but for which he is currently undergoing weekend treatment and attending meetings of Alcoholics Anonymous (AA). He states that he never drank while at work but sometimes missed work because he overslept or was too hung over to go in. His past employers will neither confirm nor deny Mr. Bustamante’s problem. Both simply state that he had worked for them as an executive chef and that he was no longer employed by their organizations. Based on his education and experience, Mr. Bustamante is clearly the best-qualified candidate for the vacant executive chef’s position. However, based on his life history, including his ability to overcome his dependence on alcohol is, in your opinion, clearly questionable. Your recommendation on Mr. Bustamante’s hiring will likely be accepted by the manager of dietary services.

1. Have you broken the law by inquiring into Mr. Bustamante’s excessive absences in his prior positions?

2. Is Mr. Bustamante protected under the ADA?

3. If Mr. Bustamante were hired but needed three days off per week to undergo treatment, would you grant that accommodation? Under what circumstances?

4. How do the rights of Mr. Bustamante and the concept of negligent hiring mesh in this instance?

Answer 1

1. "Have you broken the law by inquiring into Mr. Bustamante’s excessive absences in his prior positions?"

The question asked was in reference to excessive absence from the job in the previous two places where he was employed. The law has not been broken at the time of the interview because the question was in reference to the reason for excessive absenteeism and not specific to questioning his condition or ADA in reference to alcoholism. The employer can ask a question regarding if a person drinks or doesn’t drink. The employer cannot ask how much an employee or prospective employee drinks.

2. "Is Mr. Bustamante protected under the ADA?"

Mr. Bustamante is protected under ADA because he is a recovering alcoholic and is a regular attending meeting of alcoholic anonymous and also undergoing treatment for his condition.

3. "If Mr. Bustamante were hired but needed three days off per week to undergo treatment, would you grant that accommodation? Under what circumstances?"

The employer can allow reasonable accommodation to Mr. Bustamante by adjusted his working hours since he is undergoing treatment for alcoholism. Reasonable accommodation for an employee suffering from alcoholism is arranged by modifying the work schedule so that employee can attend alcohol anonymous meeting and undergo treatment. This is allowed so long as it does not cause unnecessary hardship to the employer.

4. "How do the rights of Mr. Bustamante and the concept of negligent hiring mesh in this instance?"

Hiring Mr. Bustamante to post his confession that he was terminated from other two jobs because of excessive absenteeism indicates that he was unable to perform his tasks efficiently due to his alcohol consumption where he says he was too hung over to go to work. Hiring him as an executive chef in the hospital which has extremely critical patients can be considered negligent hiring considering his past track record whereby he was unable to perform his tasks properly due to excessive absence. An employer can be considered negligent for hiring Mr. Bustamante as he was aware of his prior history of alcohol abuse. But he cannot be denied employment because of his alcoholism as he has confessed his ADA and also shown that he is undergoing treatment to recover from the alcoholism.