Termination for Intoxication

manyhats

Our personnel manual states that circumstances likely to result in termination include on-the-job substance abuse or dealing (drugs or alcohol). EE claims ER cannot terminate him based on on-the-job intoxication because at ER- sponsored events alcoholic beverages are served.
By the way, his on-the-job intoxication was not related in any way to an office party or event at which alcohol was served.

Do any of you know of any case law involving this or a similar quesiton/claim?

Parabeagle

Sounds to me like your ee has been talking to an armchair lawyer. I love when that happens. x;-)

Generally speaking, I don't think his argument holds water (or liquor). Our policy also says that on the job intoxication can be grounds for disciplinary action, up to and including termination. I assume you sent him in for a drug/alcohol screen at the time you suspected he was impaired? If so, I think you're on solid ground.

The only merit I could see to his argument is if you conducted office functions, during working hours, at which alcohol was served and other employees became pie-eyed and it was tolerated by management.

manyhats

Thank your for responding so quickly. Maryhats

Whirlwind

Maybe he had a couple of drinks before coming up with that line of defense. His only real defense would be if you hadn't fired other ee's under the same or similar circumstances. Your personnel manual says "likely to result in termination." Have there been times when someone drunk at work DIDN'T get fired? In other words, as long as your consistent, fire him.

Gillian3

I will disagree with Whirlwind - slightly. I think you should terminate him whether or not that was the case in the past. If you don't, you are stuck with a bad precedent forever - best to change it before you have more employees that you haven't fired because you didn't in the past.

Whirlwind

True enough. You need not be stuck with a bad precedent forever, but there might be an initial price to pay for replacing it with a new, better one.

Kent

I'd do a little research to see how previous similar situations have been handled. This could be a very slippery slope.

Wildsporty

I think you are fine if you wish to terminate since your policy states it could happen. Hopefully you haven't set a precidence in the past with someone else.

We do not terminate on a first offense for Alcohol. We suspend them for 3 weeks without pay, than if they can bring us proof that they have had treatment and are currently sober we reinstate them. They must submit to alcohol testing once a month for the next six months.

We will terminate on a second offense.

Shirley

Crout

His argument is weak...he's comparing apples to oranges...now if in the past you've dealt with behavior of this kind without resorting to termination he'd have a much stronger case, but as Gillian said that still does not mean you're stuck with a bad precedent forever.

atrimble

Here's an excerpt from our Drug-Free Workplace policy:

"To use, or be under the influence of alcohol or illegal controlled substances, at any time, to the extent that an employee’s work performance or fitness for duty is adversely affected is prohibited."

This (in conjunction with the standard prohibitions of manufacture, distribution, dispensing, or possession) covers several avenues. Basically, if an employee shows up not necessarily drunk but with a serious hangover that impairs their ability to perform, they're nailed with this clause. Of course, we can't test under reasonable suspicion (oversight?!), but we can discipline. This also covers the office party situation, because if someone is getting paid to attend, then they can be asked to perform regular duties while there. If they're drunk/stoned, they can't perform, and ...(see the Refrain above).

pork1

MANYHATS: TERMINATE and move on.