Do You Have to Pay an Employee for Mandatory Alcohol Treatment?

By Eric B. Meyer

Are you required to pay an employee for mandatory alcohol treatment?

More specifically, as posed in this recent federal court decision, “when an employer requires an employee to attend alcohol counseling and treatment sessions as a condition of keeping her job, must the employer compensate the employee for the time she spends in counseling and treatment?”

The three plaintiffs, New York police offers, identified three aspect of counseling that they claim they were required to undertake:

Inpatient counseling at a residential treatment facility (with respect to one plaintiff);
Outpatient counseling during regularly scheduled work hours; and,
Outpatient counseling after regularly scheduled work hours.

Rehab sessions did not benefit the employer

All three were paid their regular wage while in counseling. However, none of these employees received overtime.

In determining whether the employees were entitled to overtime payment for their hours spent in counseling, not only did the court offer an emphatic no, but the court determined that the counseling sessions are not “work” and, therefore, not compensable at all.

First, the counseling sessions did not benefit the NYPD in any relevant way.
Second, the Plaintiffs benefited from the counseling sessions.
And third, the NYPD did not assume primary responsibility for the cost of the counseling. Moreover, as further addressed in this recent U.S. Supreme Court decision, the Portal-to-Portal Act excludes counseling sessions from the definition of “work.”

Based on this decision, if you require employees to attend alcohol treatment and counseling, the Fair Labor Standards Act does not require that you pay them.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.