Recent Decision Provides Case Study on Managing Suspected Alcohol Impairment

Thursday, November 12, 2015

If an employer suspects that an employee may be coping with a substance abuse issue, such as alcoholism, what steps can it take to ensure that the employee is not coming to work impaired?  A recent federal court case explored this issue and found that an employer acted within the scope of the law when it required an employee to undergo a breathalyzer test for alcohol and, based on the results of that test, terminated the employee from his safety-sensitive position.

The employee in the case, Foos v. Taghleef Industries, worked with machinery that required him to follow several safety protocols to ensure his own safety and that of others.  During his employment, the employee went out on a number of FMLA-covered leaves.  When requesting to return from his last leave, his physician submitted a return to work note that identified his diagnosis as “acute alcoholic pancreatitis.”  Upon receiving the physician’s certification, a health and wellness manager became concerned that the employee might be consuming alcohol at work.  The concern was based on the employee’s history of pancreatitis (which the employer did not know was related to alcohol prior to the doctor’s certification), as well as information that the employee had been hurt in a bar fight (which resulted in one of the employee’s previous FMLA-covered leaves).  Based on these concerns in light of the employee’s safety-sensitive position, the company concluded that it had reasonable grounds to believe that the employee was coming to work impaired.  When the employee returned from work, the company therefore sent him to the hospital for a breathalyzer test.  The company then terminated the employee after his test came back positive.

Although the employee claimed that the alcohol test was unlawful under the ADA, the court concluded that, under these facts, it was reasonable for the company to inquire into whether the employee was able to perform his job.  The alcohol test was therefore “consistent with business necessity.”  Also bolstering the employer’s case was that it applied the same procedures any other time it suspected an employee was returning to work in an impaired condition.  In other words, there was no evidence that the company singled out this employee for treatment that was distinguishable from other employees.

Although this decision certainly provides some guidance as to the steps an employer can take to ensure an employee is not coming to work impaired, it is just that: a guidepost.  Each case – and each employee – must obviously be analyzed on an individual basis.

Second Circuit Upholds NLRB’s Views on Employee Social Media Use

Tuesday, November 10, 2015

Last year, the National Labor Relations Board held for the first time that “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  For a brief overview of this case, Three D, LLC, see our previous blog post here.

Now, the Second Circuit Court of Appeals has affirmed the Board’s decision. Although the Second Circuit issued its ruling as an unpublished summary order, which means that it does not have precedential effect, employers should not discount the effect that this ruling will have on the Board’s aggressively pro-employee agenda.

Three D argued on appeal that the Board incorrectly ruled that a discussion by a group of employees on Facebook was protected under the NLRA.  Although the discussion ostensibly related to the terms and conditions of employment, because it involved the issue of taxes and wages, the company argued that the employees crossed the line by incorporating obscene and disloyal comments into their discussion.  According to the company, the Board ignored the company’s legitimate interest in preventing the disparagement of its reputation, particularly where the employees’ Facebook discussion was viewable – and was in fact viewed – by customers.

The Second Circuit disagreed, however, finding that almost “all Facebook posts by employees have at least some potential to be viewed by customers” and that, even though customers did see the Facebook discussion at issue, the “discussion was not directed toward customers and did not reflect on the employer’s brand.”  Consequently, the employees’ comments – including the act of “liking” the comments – were protected and precluded the company from disciplining the employees.

The decision raises an important question for employers in the area of social media, which is:  when does an employee’s post “reflect on the employer’s brand?”  Here, even though the employees’ posts referenced the name of the company and alleged it had mismanaged its employees’ taxes, the comments were not found to reflect on the company’s brand.  The Second Circuit’s decision therefore suggests than an employee’s disparaging comments will have to be far more specific before losing protection under the Act, particularly where the comments arguably relate to terms and conditions of employment.  In other words, an employee’s online post does not become unprotected simply because it contains obscenities and is viewed by the company’s customers.  According to the Second Circuit, this conclusion simply reflects “the reality of modern-day social media use.”