Benefits

Don’t Try to Regulate Employee Off-Duty Alcohol Consumption

By Jon Hyman

Sep. 23, 2014

We know it’s legal to fire an employee for drinking on the job, but what about an employee who drinks off the job? Can an employer legally terminate an employee who tests positive for off-the-job alcohol consumption?

Twenty-nine states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities. In these states, the answer is easy — no, you cannot fire an employee for off-duty drinking, unless, of course, the employee is drunk or impaired at work, at which point all bets are off. 

Ohio, however, is not one of these states. Does this mean that in Ohio you can legally fire an employee who drinks away from work?

Recently, the Equal Employment Opportunity Commission took up this issue in an Informal Discussion Letter. The EEOC was asked, “Is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment?”

The employer in question, a nuclear power plant operator, imposed random, for cause, and follow-up alcohol testing of all employees, and fired any employee after a second confirmed positive alcohol test at work, regardless of where the employee consumed the alcohol. Further, the employer required employees who are alcoholics or are perceived to be alcoholics to permanently abstain from drinking, regardless of whether they have tested positive for or been under the influence of alcohol at work.
 
The EEOC concluded that the policy “imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job.” Because the Americans with Disabilities Act protects alcoholism as a disability, the policy discriminates on the basis of that disability. Thus, the policy was illegal under the ADA.
 
Employers do not have to go as far as the employer in this case to protect safety and other legitimate interests. This employer (a nuclear power plant operator) has as great an interest as any employer in ensuring that its employees are not impaired on the job. 
 
Tailor you work rule to on-the-job performance. Test randomly and test for cause. If an employee tests positive, you know that employee was under the influence at work, a terminable offense. There is no need to regulate employees’ off-duty lives by requiring abstinence.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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