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.
