Alcohol on Employee's breath

Christine M

I recently wrote a "Use of Controlled Substances and Alcohol" policy which was reviewed by the Executive team prior to implementation. They were uncomfortable with the fact that we would send someone in a safety sensitive position for breath-testing at the local hospital based on the subjective judgement of 2 employees, at least one at a group leader or higher level (highest level employee working the third shift is a group leader). In addition, if the medical team is onsite (2 days per week) and alcohol was smelled on the breath of any employee, they would be evaluated by the medical team and sent for testing if they felt it necessary. (Limits for safety sensitive position equivalent to DOT and non safety sensitive 0.04%).

The executive team would like to obtain self breathalyzer kits (such as used in bars) that could be used as a pre-screen, i.e. employees have the option to take one of those tests and be sent to the hospital for further testing only if the test is positive, OR to go for testing at the hospital according to the policy. They also are very uncomfortable with the tight limits, but are willing to go with them given that I followed DOT standards.

I am looking for pros and cons on this idea. Any help or experience would be appreciated.

Marie

Our policy doesn't allow for smell of alcohol alone as reasonable cause for testing. I wouldn't want to do the test on-site unless you have a medical professional do the test. That is why we don't use the urine test kits. Too much room for error (or the claim of error).

Christine M

The idea is that the onsite breathalyzers would only be used as a tool to deny the need for further testing. Safety sensitive positions are ones in which impairment could lead to substantial harm to other employees, the community or the environment. Employees who do not yet exhibit slurred speech, impaired gait, etc., may still be impaired, especially when you consider the potential impact of errors in judgement or actions.

If employees test positive, all it would mean is that they would be sent to the hospital for testing. If they tested negative, they would be cleared to return to work.

I'm not advocating their use, in fact it makes me uncomfortable, but maybe more from an ADA point of view, although I don't know that giving someone a breathalyzer test on site (solely as a screening tool for further testing) is any less of a risk to "considered impaired" than requiring that they go for testing at the hospital.

Down_the_Middle

I work in a large metropolitan hospital and we have taken the position for some time that alcohol breath constitutes reasonable suspicion. We conduct an oral swab (using a Q-tip type device) that detects the presence of alcohol. If the amount is above our minimum threshhold, we draw blood for specific levels. If a very low level of alcohol is present, we send the employee back to work feeling comfortable that impairment does not exist. You might check into these oral swabs as a way of determining initial levels of alcohol and what training is necessary to administer this test. It may be a more viable option than shipping the employee to the nearest hospital for testing.

Susan Fentin MA

I have a client who has recently instituted breathalyzer testing for employees where reasonable suspicion exists that they could be under the influence. The level of alcohol that triggers further testing is relatively low, but I don't recall offhand what the number is (it's below the legal limit for drunk driving). If the employee tests positive, he/she is referred to a lab for further testing. This is a new policy for this client, and I'm not sure yet how it's working.

I do recommend, however, that you use this carefully. If the job is safety sensitive, there should be no problem. But if the job is administrative, a secretary for example, and there is no impact on job performance, you could be subjecting yourself to ADA/151B issues. Remember that alcoholism is a protected disability under both statutes. If you have any further questions, please feel free to contact me directly. Good luck!
Susan Fentin
Associate Editor
Massachusetts Employment Law Letter
[email]sfentin@skoler-abbott.com[/email]

WT

While alcoholism is a protected "disease", being under the influence at work is not. Whether testing is done on or off site, really makes no difference. The employee will have a problem with being tested. By the time the smell of alcohol is clear and behavior is noticed, you will be absolutely amazed at how high your testing levels will come back. I have seen a .23.

Try to make sure your staff is trained on alcohol and substance abuse. Bring in a trainer, have a sign-in sheet, and keep that sheet. In any argument or lawsuit the first question asked will be, "Did the staff member who had the reasonable suspicion and sent the employee to be tested have training in how to spot somebody under the influence." Here your sign-in sheet will be worth its weight in gold.

If you are looking for an easier way out, bring the employee in and offer them two routes. They can go home immediately and use up paid time off, or they can go and be tested. If not under the influence they will receive an apology, but if under the influence, they will receive discipline. Invariably they will go home. Good luck.