Can We Fire Someone Who Comes to Work Drunk?
What to do about an employee that appears to be under the influence, but isn’t drinking on the job and it doesn’t seem to affect performance?
What do we do when the the receptionist shows up reeking of alcohol?
Dear Rita:
Our receptionist reeked of alcohol when she arrived at work today. This is not the first time this has happened, especially on a Monday morning. We have spoken to her several times and, as in the past, her supervisor took her aside and asked if she had been drinking.
The receptionist denied she had any alcohol to drink that day, but said she had attended a party the night before where she had been drinking. Because she is the face of our organization, we cannot have clients checking in with an employee who so often appears to be “under the influence.” What can we do about this situation, as she is not actually drinking on the job nor does it seem to affect her performance?
— Stumped and Frustrated
Dear Stumped and Frustrated:
The first place to go is to your personnel handbook. Hopefully, there you will find a Drug and Alcohol policy.
Even if her performance isn’t affected obviously, you can still take action if you have “reasonable suspicion” that an employee is under the influence at work. Since only a lab test can determine whether this is true, you will want to look in your handbook for statements that:
- Ban drug and alcohol use in the workplace and require that employees not be under the influence at work.
- Specify that employees will be required to undergo alcohol/drug testing when there is reasonable suspicion that the employee is under the influence of alcohol/ drugs while at work.
- Identify who will conduct the alcohol/drug testing.
- State whether the employee’s physician or a laboratory of the employee’s selection may conduct a retest.
- Tell employees that if they are taking an over-the-counter or prescribed medication, he/she should advise the employer of that fact prior to testing.
- Address what will occur if the employer believes an employee has intentionally interfered with a test, e.g., by substituting someone else’s urine for his or her own.
- Address the employee’s status while waiting for the test results, e.g., suspension with or without pay
- State clearly the consequence of being at work under the influence, e.g., discipline, including suspension and termination.
After reviewing your policy, you should document the fact that the employee smells of alcohol (substantiated by witnesses) and send the employee for an alcohol test. It is wise to have a prearranged lab that tests for levels of alcohol in the blood. Remember to respect the employee’s privacy in providing samples.
You should not let the employee drive herself to the lab but have her taken to the lab by another employee. You should also have set up in advance what type of test you want to use, e.g., urine, blood, Breathalyzer, hair, saliva. You should verify with the lab its procedure to ensure that the sample given is the sample tested. You may decide to require a sample sufficient to test half of it, preserving the remainder for a later test if the first one is challenged.
If the first test is positive, you should have thought through whether you want to provide the opportunity for a retest. Sometimes, the first screening test (which is inexpensive) is not very reliable, so a second different, more expensive test should be performed to confirm the results.
If the test result is not immediately available, you should send the employee home, with/without pay, and consider what action you are going to take upon receipt of the results. DO NOT LET THE EMPLOYEE DRIVE HERSELF HOME. Again, have her transported by one of your employees.
What if the test is positive?
Let’s now consider next steps if the test results show that the employee, although not drinking on the job, has arrived at work with a measurable level of alcohol in her system. The results of tests should remain confidential. The results should be provided only to those individuals with a “need to know.”
If this was the first time, you could either give her a warning or send her for an EAP consult, but in your letter you state that this has happened several times before and she has been previously warned.
Alcoholism, FMLA and ADA
You have enough information to apprise you that you may be dealing with the disease of alcoholism. Although you can hold an alcoholic employee to the same job performance standards as other employees, you will have to consider two federal laws: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
Let’s first look at the FMLA issues. If you have 50 or more employees and you determine that the employee is an alcoholic, the employee may request time off for treatment under the FMLA. If so, you should grant the time off. Upon her return, you can deal with the performance issue and require the employee to sign a “last chance” agreement stating that any further evidence of coming to work intoxicated will subject her to termination.
If you do not have at least 50 employees, but have 15 or more employees, you may still have to consider the employee’s request for accommodation for alcohol treatment under the ADA. You can perform the same analysis as for any other time-off request for a disability, weighing whether it creates an undue hardship for your nonprofit to give time off for treatment. Also check your state laws, as some states also allow time off for treatment (generally subject to the undue hardship analysis), but there is no law that requires the employer to accommodate the behavior that accompanies alcoholism. Therefore, you do not have to accommodate your receptionist coming to work smelling of alcohol.
Suppose your receptionist requests intermittent time off during the day for treatment, perhaps to attend Alcoholics Anonymous (AA) meetings. You must consider only job-related factors, and basically ask and answer the question: By making the requested accommodation, can the employee continue to perform the essential functions of the job? You do not have to put your clients, co-workers, or business at risk in order to keep an employee on the job.
The bottom line for “reasonable suspicion” alcohol testing is that supervisors are in the best position to recognize that an employee has a problem with alcohol that is interfering with his/her ability to get the job done. However, supervisors are not substance abuse counselors, nor do they have the expertise to diagnose alcohol problems. What they can do is document facts of alcoholic behavior, such as smelling alcohol on an employee’s breath, slurring of words, spotty attendance, or other signs. Only medical testing can answer the question as to whether the employee is under the influence while at work.
Regarding your receptionist, she needs to be tested and, depending upon whether or not she seeks accommodation for treatment of alcoholism, you can determine whether she will require either time off for treatment or separation from employment.
See also:
- Can Employees Smoke Medical Marijuana at Work?
- Emma’s Disability is Hurting Performance: Can We Fire Her?
About the Author
Pamela Fyfe is an Employment Risk Manager for the Nonprofits Insurance Alliance. In her position she helps nonprofits avoid potential employment claims and reduce the possibility of future claims. Before joining the Nonprofits Insurance Alliance Group, she practiced employment law for more than 25 years — representing management in wrongful termination, discrimination and sexual harassment cases. She admits to possibly having sneaked online at work to see her first grandchild — Mara Adeline — who lives in London.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.
18 thoughts on “Can We Fire Someone Who Comes to Work Drunk?”
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This is a very HR and legal-heavy response, designed to eliminate any possibility of legal action, even though the prospect of her suing for firing her over this is tiny.
How about this: “Mary, we cannot have you representing us to clients if you smell like alcohol or appear to have been drinking. We’re not saying that you have been drinking, as we don’t know that. We’re talking solely about the impression you’re creating. If you continue to show up at work giving that impression, we will need to let you go that day.” The end.
Assuming this is an at-will employee, this is way simpler and more direct, and highly unlikely to get you in legal trouble.
And what happens if the employee refuses to go for the blood test for alcohol ?
What happens when the employee who is “assigned” to drive Receptionist to a “pre-arranged” (such careful planning in advance… 🙂 blood testing lab is abused, physically or verbally, if Receptionist acts out in the car?
Does the organization’s liability insurance even cover an employee transporting a suspected inebriated person to the lab, or anywhere ?
Rita’s answers are just so pat, when the actual situation can be messy beyond imagining.
Long article, short on real life examples and consequences.
Is there supposed to be a link for the “model policy” in the last paragraph?
We messed up. We decided not to publish the model policy as it wasn't quite right. We'll change the paragraph so others don't get misled as well. Thanks for pointing this out! Jan
Rita’s answer is thorough and sound, but it assumes the scenario takes place in a large organization with a fully staffed HR department and adequate staff to both drive the receptionist to a testing facility as well as available staff to step in at the front desk. I would suspect that any organization with all those resources in place wouldn’t need advice here on this topic; if that’s not the case, the input is sound.
But for smaller agencies, a more immediate, practical response is needed. Obviously, immediate action is needed, which can be as simple as stating that the smell of alcohol on Rita prevents her from adequately performing her duties, regardless of how well she speaks, types, takes messages, or whatever. Smelling of alcohol is no more acceptable than swearing at clients is.
Rita should be removed from the workplace with appropriate documentation of the reasons why. You can offer her the option of taking an alcohol test to clear her name, (and I would have the agency pay for the costs), and allow her to return to her position once sober, but put in writing that a repeat offense will result in additional adverse action, up to and including termination.
As for legal liability, you’re always at risk, regardless of how ironclad your procedures are. My experience has been that individuals who sue for wrongful termination rarely consider their chance for successfully winning their suit (it’s more about “getting even”), and there’s usually an attorney that will take even extreme cases in the hope of gaining a settlement rather than an outright win.
Pamela Fyfe presents a textbook case for dealing with this common issue. In my 37 years of management experience, this is standard HR procedure.
This stuff is messy but not dealing with it is even more messy. These situations do not get better by themselves and they make a lot of other things worse (like teamwork, reputation, etc.).
One caveat is to be very careful about offering to support time off for evaluation, treatment etc. I told a person in this situation “you are a valued employee and to keep your job you need to be evaluated.” Then when the person was found to have alcoholism, it was to participate in treatment.
I came to regret the decision. While the person was on leave, I discovered a variety of serious issues and decided I no longer wanted to keep the person on staff. That lead to a contested termination and an ugly situation.
However, many years later the person thanked me for their termination, saying I have never told you but I have been in AA since…..(and that was when I sent them into treatment).
Sometimes you have to take the long view and let it work itself out.
BTW If the person requests FMLA you have to support that.
The employee should also be checked for possible tuberculosis, which can cause the “alcohol” odor.
People who drink heavily in the evening often smell of alcohol the next day (even if they have showered) because the alcohol still in the body comes out through their pores. If this happens frequently the person obviously has a drinking problem, even if he or she is not drinking on the job. I would recommend a compassionate approach involving counseling.
Greetings, a little HR/legal advice appreciated – I hired a delivery driver who I found out had been drinking vodka the whole day, on his first training day. fired him the next morning. he is now asking for his paycheck. Also, he didn’t bring in his i.d. to be able to fill out a w9 (it was my bad for allowing him to work that day) so he’s not even in our system yet. Do I have to pay him?
thanks
Employees must be paid for the time they have worked – even if they do something during that time that results in the termination of employment.
In general the I-9 form must be completed within the first three days of employment. You can find out more about the I-9 form here:
https://www.uscis.gov/i-9-central
If you need legal advice, you should contact an employment attorney in your state.
I believe, coming from the receptionist’s side of the example story, that these guidelines are somewhat draconian in nature as for a recommended blanket employee policy. I do grant that a receptionist who smells like alcohol due to drinking the day or night before may not be the best person to represent the company and greet clients.
What employees do in their spare time is really none of the employer’s business unless it is criminal or directly impacts the company. Between social media and HR policies like this, slowly middle to lower class employees are being treated like drones.
In the above example, I would first suggest to the receptionist that she smelled of alcohol whenever the issue arose, suggest she go get some breath mints or bring a few packs of gum to work in the case her off work activities linger into the following work day. If the smell was so strong that she just couldn’t do her job, try to rotate her duties to something where she won’t be interacting with clients until the problem resolves itself; every company needs a plan for a receptionist if they are sick or need to go for a break, so perhaps cross training them on their backup replacement’s job would allow them to swap until the problem resolves itself.
In my own example, I was working on a construction site, in one instance with a broom and a shovel, in a place filled with dust, and was sent home. In another I was outside working grinding steel on a construction site. In yet another, I was working night shift in a warehouse. Not a customer or client in sight, and was often working largely alone on autopilot. I showed no signs of intoxication, was doing my job as requested. My examples are, unlike the receptionist example, what I would consider draconian; and if the above were applied to those work environments it would be draconian as well. Ditto would go for an office worker who has no face to face contact with clients that day, or ever.
It is also important to note that different people have different tolerances for alcohol. While one person may get tipsy after three drinks, another may not even be phased after 12 or more. Customer interaction aside, the smell that one person would think is obvious evidence that the person is just loaded, may in fact be nothing to the person in question. Different people have different sensitivities to the smell of alcohol as well. I have had girlfriends who would nearly gag after I had a single rum and coke, and other girlfriends who wouldn’t be bothered by the smell when I even had downed an entire bottles worth of them.
In the receptionist scenario, my suggestions for first advising her of the smell, and perhaps trying to do some job rotation would be the first line of defense. Many people don’t even know they smell like alcohol after drinking the night before. If the problem becomes frequent enough that job rotation is no longer an option, a simple conversation that while you’ve tried to accomodate that she sometimes overindulges on the weekend, it is becoming too much and it needs to stop being so frequent or she will lose her job to someone else who won’t come in smelling that way – and set a standard, that if it happens more than once a month you’ll have to let her go. Then if you must terminate her, suggest another job in the company for which she may be more suited.
However construction sites, landscaping, warehouse work, these job roles do not have an appearance standard (just look at the workers on a construction site, they’re hardly trying to maintain an appearance) and the work is often dirty. The hard labor of heavy lifting, physical exertion may exacerbate the alcohol smell as during hard work you breathe heavier and more vapour comes out of your pores. Maybe the employee didn’t smell like alcohol when they left for work that morning, and after a few hours of exertion they started smelling like a brewery.
The fact remains that alcohol is a legal substance. It is highly regulated and taxed. Employers are not permitted to give instruction on what an employee does during their spare time provided they can perform their duties at work.
Now, if employers permitted workers to call in and say, “I’m sorry, I’m pretty hung over and probably reek like alcohol from the night before, it might be best if I do a half day or take the day off.” without fear of retribution from the employer, then the above advice by the author might be reasonable. This time off could even be unpaid. Either forcing attendance and tardiness or watching sick days like a hawk will lead to problems like these. I once had a boss who literally would rib me if I called in sick, but just laughed if I called in to say I was hung over and told me to come in when I was feeling better or tomorrow- so I didn’t have to lie. It wasnt much of a problem. If something urgent needed to be done the following morning, I would ensure to get to bed early and take it easy that night.
I also find it odd that these policies disproportionately target lower class workers. Investment bankers, lawyers, high performing salespeople, and even in some cases doctors never get this kind of HR treatment, and there is alcohol everywhere. One investment bank I worked for had three liquor cabinets and two beer fridges, and even provided mix on the company for hard alcohol. Friday at 11am a bottle of wine would be uncorked. Most lawyers offices have liquor cabinets onsite, as do a lot of high performing salespeople. Yet the receptionist, the warehouse worker, the construction laborer are targeted. Food for thought.
In closure, the key to whether to take disciplinary action is if there is evidence of intoxication – beyond just smelling it – slurred speech, inappropriate behavior or comments, lack of balance, unsafe behavior, falling asleep, or just plain being too drunk to focus on the job at hand. Simply smelling of last night’s liquor alone is a very poor reason to threaten to terminate an employee.