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Termination for failing Alcohol Breath test while off work.... Arkansas Texas Texas

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  • Termination for failing Alcohol Breath test while off work.... Arkansas Texas Texas

    Ok, quick question but need to give a little background. This involves the oil & gas field where the guys work for 2 weeks and home for 2 weeks. While at work, they work 12 hrs/day and then stay in a company trailer on-site, however, are not required to stay there and free to come and go on their 12 hrs off. Recently, they conducted a random drug & alcohol test, not only on the guys currently on "hitch" but also the guys that had gotten off work a few hrs earlier. They terminated 2 guys for failing the alcohol test. Now, the only thing listed in the drug & alcohol testing policy regarding alcohol was that it is not to be kept on the premises...which was not done. Are they within their rights to terminate guys for having a drink on their time off and failing alcohol test while on off time?

  • #2
    Yes. ..........
    http://en.wikipedia.org/wiki/At-will_employment
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      Ok, I get that but wouldn't this fall under the EEOC, under medical examinations? I found this on the EEOC website:
      PERIODIC MEDICAL EXAMINATIONS AND TESTING

      May employers require employees to have periodic medical examinations? (Question 18)

      No, with very limited exceptions for employees who work in positions affecting public safety, such as police officers, firefighters, or airline pilots. Even in these limited situations, the examinations must address specific job-related concerns. For example, a police department could periodically conduct vision tests or electrocardiograms because of concerns about conditions that could affect the ability to perform essential job functions and thereby result in a direct threat. A police department could not, however, periodically test its officers to determine whether they are HIV-positive, because a diagnosis of this condition alone would not result in a direct threat.
      May employers subject employees to periodic alcohol testing? (Question 19)

      Generally, no. Employers, however, may subject employees who have been in alcohol rehabilitation programs to periodic alcohol testing where the employer has a reasonable belief that the employee will pose a direct threat in absence of such testing.
      In determining whether to subject such an employee to periodic alcohol testing, the employer should consider the safety risks associated with the position the employee holds, the consequences of the employee's inability or impaired ability to do his or her job, and the reason(s) why the employer believes that the employee will pose a direct threat.
      Of course, an employer may maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace and may conduct alcohol testing for this purpose if it has a reasonable belief that an employee has been drinking during work hours.

      My question is more along the lines of it being a violation since these employees were NOT working during the time of the test?

      Comment


      • #4
        My question is more along the lines of it being a violation since these employees were NOT working during the time of the test?
        It's an argument. I presume if challenged the company would take the last paragraph of the exact same quote you just cited and say the action was supported by that.

        The employee can try filing a claim with EEOC. It works or it does not.

        As far as I can tell the case that started this was based on a termination of an employee by U.S. Steel in 2008. EEOC files their case in 2010, and as of the article I can find a few months ago, this case is still not resolved. EEOC was using an ADA based argument. Not impossible but until/unless they win their case, there as far as I can tell is no actual case law supporting this opinion. Just the EEOC rather recent opinion, which is not nothing, but is also not everything. In the very specific U.S. Steel case, the employee who was termnated had not been drinking but rather had an actual medical condition which gave a false positive alcohol breathalizer test. EEOC argued that this was illegal discrimination based on the ADA law. IMO, EEOC had a point. Your example apparently does not involve ADA at all, but you are trying to use ADA rules to invalidate an otherwise legal termination that does not apparently involve ADA at all. Not impossible, but far from certain.
        http://www.eeoc.gov/eeoc/foia/letter...b_15_2008.html
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          Actual current alcohol use is not protected by ADA. Only a past history of alcoholism which is not at issue here. The employees were terminated for being under the influence while on the job site. Whether they were working at the time or not is immaterial. I can see why you would disallow alcohol on the premises and take issue with someone being under the influence while on the premises, even if they were not on the clock. It is still a huge safety risk.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

          Comment


          • #6
            I was working for a large manufacturer in the 1980s. We had a thousand plus factory workers and a big drinking problem with people working drunk on the job Some serious injuries related to that. We had serious down sizing in 1986 and every employee suspect of pretty much everything got laid off. Including all the drinkers (including some office workers). Lawsuits were threatened but nothing resulted.

            There is a whole lot of case law that under Employment At Will you can fire people not only for working drunk but drinking in their off time. There is case law that employers can legally fire employees for supporting political candidates the employer does not like, and other strange things. Now Emlployment At Will is Common Law, not statutory law, and specific statutory law such as ADA could indeed override it. But unless ADA can be tied in, and it does not sound like it does in this situation, I am really not seeing an action here. Been wrong before. Termination law is strange and complex and there are doubtlessly things I have not run into yet. And a really expensive lawyer with a lot of time on her hands can invent an endless serious of possible actions.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment


            • #7
              ElleMD - I COMPLETELY understand your point...since they are "housed" at the site, if they were "drunk", it could still pose a safety risk. And yes, I understand, Employment at will makes it ok for them to pretty much terminate at will regardless of the reason (as long as it's not discriminating). And I'm not trying to find a law broken where one wasn't, just that this industry is notorious for "bending the rules" or getting very close & taking advantage of the education, or lack of, of these guys in the field. These guys are away from home for 2 weeks at a time & will have a drink from time to time on their time off, as a lot of us do after a hard days work and were not aware they could be tested and terminated for something being done on their time off and i want to be sure my husband is not one being taken advantage of or advise him of what is to be expected of him, so he's not breaking any rules.

              One more question...if they chose to stay away from the site for the day/night, can the employer require them to return to work site for said test on their time off? And are there limits, like a DUI, where they have to be over the "limit" or would ANY sign of alcohol be grounds for termination?

              Thank you all for your help!!

              Comment


              • #8
                Das ist in der Doktor!

                Originally posted by RoughneckWife View Post
                ElleMD - I COMPLETELY understand your point...since they are "housed" at the site, if they were "drunk", it could still pose a safety risk. And yes, I understand, Employment at will makes it ok for them to pretty much terminate at will regardless of the reason (as long as it's not discriminating). And I'm not trying to find a law broken where one wasn't, just that this industry is notorious for "bending the rules" or getting very close & taking advantage of the education, or lack of, of these guys in the field. These guys are away from home for 2 weeks at a time & will have a drink from time to time on their time off, as a lot of us do after a hard days work and were not aware they could be tested and terminated for something being done on their time off and i want to be sure my husband is not one being taken advantage of or advise him of what is to be expected of him, so he's not breaking any rules.

                One more question...if they chose to stay away from the site for the day/night, can the employer require them to return to work site for said test on their time off? And are there limits, like a DUI, where they have to be over the "limit" or would ANY sign of alcohol be grounds for termination?

                Thank you all for your help!!
                Yes, the employer can require them to come in and be tested at anytime,
                and the limits are whatever they say they are
                ..___________
                ~ Anything not nailed down is mine,
                anything I can pry loose, is not nailed down.

                Comment


                • #9
                  Agreed, although if the employer has the employees come in to get tested, we likely now have hours worked. We need to be careful about the exact issue being looked at.
                  - With very few exceptions, employers can require pretty much any employee to work pretty much any hours the employer wants.
                  - Telling employees to not drink in off hours is generally a legal order, and generally does not cross the hours worked line (by itself). There have been a lot of "on call" court cases on this point that have all come down the same way.
                  - Telling employees to come in to work to get tested likely is hours worked, but it is also likely a legal instruction.
                  - Employers do not need a legal reason to terminate someone (Employment At Will). They just need the absence of an illegal reason.
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

                  Comment


                  • #10
                    Are they rig hands?
                    Or do their job duties include any driving. Many oilfield jobs have a driving component and then the DOT rules apply. If that is the case then yes they can absolutely be terminated.

                    Comment


                    • #11
                      The easy solution is to save the drinking for the two weeks they are totally off duty and at home. If they are on duty and living at the worksite, drinking is a bad idea. It is no different than an employee on a business trip or who goes to a client dinner as part of work. They want a glass of wine or a beer with dinner, but the employer may forbid it. In my industry, that is incredibly common.

                      The "legal limit' refers only to driving a motor vehicle and has no application beyond that. Employers are not obligated to use that limit and in fact, in safety sensitive work areas, should have a zero tolerance or much lower limit. At the point you reach the limit to drive, you are already impaired.
                      Last edited by ElleMD; 12-10-2012, 09:10 AM.
                      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                      Comment

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