1

Alcohol Screening at Work:Best Practices and Legal Considerations

for Workplace Alcohol Testing

Don JohnsenGallagher & Kennedy, P.A.

PhoenixApril 2017

2

Risks of Alcohol Use Danger associated with

addictive/chronic use– But note danger also arising from

casual use

– Impaired “to any degree”

Higher rate of workplace injury

Higher rate of absenteeism

3

Practical Benefits of Testing Change applicant pool/employee

population

Reduce workers’ compensation experience and rates

Marketing to customers

Re-establish control over workplace

4

Legally Compliant Testing

5

Legally Compliant Testing Governmental entities must be

cognizant of constitutionallimitations– Fourth Amendment restrictions on

unreasonable searches

– Alcohol and drug testing may be “reasonable”

• True safety-sensitive positions only (e.g., law enforcement, transportation)

6

Legally Compliant Testing Non-governmental employers must

be aware of state and local lawsand regulations– Some states prohibit workplace

testing except under limited circumstances

– Some states expressly permitworkplace testing under certain conditions

7

Legally Compliant Testing Americans with Disabilities Act

– ADA does not prohibit testing for the illegal use of drugs

– Alcohol testing• ADA does not authorize pre-employment

testing for alcohol

• Legal risk in testing applicants for alcohol use

8

Legally Compliant Testing Americans with Disabilities Act

– Alcohol testing of employees

– ADA allows testing when “job-related and consistent with business necessity”

• Testing to ensure employee workplace safety

• Testing to ensure employee compliance with work rules prohibiting alcohol use and abuse

9

To Test Or Not To Test

10

To Test Or Not To Test Judges and juries tend to have a

strong sense of “fairness”– Did the employer have a fair work

rule, a fair policy?

– Did the employer satisfactorily explain its rules?

– Did the employer apply its rules in a fair and reasonable manner?

11

To Test Or Not To Test Fair work rules and policies

– Addressing use of alcohol on the job

– Addressing working under the influence of alcohol

– Focusing on:• Safety

• Productivity

12

To Test Or Not To Test Did the employer satisfactorily

explain its rules?– Written policy, written in plain

language

– Paper copy of policy hand-deliveredto all covered employees

– All employees sign to confirm receipt

13

To Test Or Not To Test Did the employer apply its rules in

a fair and reasonable manner?– Be aware of how management has

dealt with similar situations in past 18-24 months

– OK to deal with different situations in a different manner

• It’s OK to “discriminate”!

14

To Test Or Not To Test Reasonable suspicion

– “Specific objective facts from which it would be reasonable to conclude that a violation has occurred”

15

To Test Or Not To Test Specific objective facts

– Odor of alcohol

– Bloodshot or unfocused eyes

– Weaving or staggering

– Inappropriate responses

Would it be reasonable to conclude that alcohol violation may be occurring?

16

To Test Or Not To Test Post-accident/post-injury

– Would it be reasonable to conclude that alcohol violation may be occurring?

17

ADA Issues

18

ADA prohibits discrimination on the basis of a known “disability”

– Failing an alcohol test ≠ knowledge of an actual “disability”

– But employee might possibly claim to be “disabled”

ADA Issues

19

Employee who self-identifies and requests help is entitled to accommodation– Altered work schedule

– Job restructuring (short of elimination of essential job functions)

– Use of time off policy

– Reassignment to vacant position

ADA Issues

20

“Interactive process”

– Consultation with employee and health care re manner in which condition impacts ability to work

– Adjustments that may permit employee to do the job

– Employer makes final determination about feasibility of accommodations

ADA Issues

21

But employers are not required to tolerate unsatisfactory performance or misconduct, even when caused by chemical dependence

ADA Issues

22

Worst Mistakes

23

Worst Mistakes Policy violation

– No policy

– Bad policy

– Failure to follow written policy

“Doing it yourself”– Danger of mismanaging specimen

collection

– Risk of “chain of custody” violation

24

Worst Mistakes Forcing an individual to provide

specimen without consent– OK to condition continued

employment on consent

Ignoring medical explanations re positive test results

25

Worst Mistakes Disclosing test results to

unauthorized persons

Failure to comply with applicable state or local law

26

FMLA Warning

27

Remember that alcoholism can constitute a “serious health condition” under FMLA

Be alert for covered employee’s request for FMLA leave to deal with alcoholism or other addiction

FMLA Warning

28

Up to 12 weeks of leave (unpaid) in a given 12-month period

Reinstated to same job, or to an equivalent job

– “Virtually identical” to the old job

– Pay, benefits, working conditions, privileges, perks, and status

FMLA Warning

29

Don Johnsen (Gallagher & Kennedy)

– www.gknet.com

– dpj@gknet.com

– (602) 530-8000

Further questions

30

Alcohol Screening at Work:Best Practices and Legal Considerations

for Workplace Alcohol Testing

Don JohnsenGallagher & Kennedy, P.A.

PhoenixApril 2017

31