Printer Friendly Version

RHOADS & SINON LLP ATTORNEYS AT LAW
ONE SOUTH MARKET SQUARE
P.O. BOX 1146
HARRISBURG , PA 17108-1146
www.rhoads-sinon.com

David F. O’Leary’s Direct Dial: 717-231-6633
FAX: 717-231-6637

Email: doleary@rhoads-sinon.com

Employment & Labor Law Group

TO: Clients, Friends and Colleagues of Rhoads & Sinon

FROM: David F. O’Leary

RE: Employment Law Note #3. Passing the Smell Test. More On Drug & Alcohol Abuse Policies (October 2002)

Periodically (no more than once a month), I write a brief essay on an employment law issue in which I am interested and I hope you find interesting, too. I try to provide practical advice. Please do not hesitate to contact me if you have any questions or comments.

Passing the Smell Test More On Drug & Alcohol Abuse Policies

Employment cases arising out of drug and alcohol abuse policies continue to flow from the courts. A recent unemployment compensation case points out the benefit of having a broadly worded drug and alcohol abuse policy that covers all the bases.

In Lindsay v. Unemployment Compensation Board of Review, 789A.2 nd 385 (2001) the employee worked at the Pittsburgh Medical Center as an elevator operator. She reported to work one morning smelling of alcohol and glassy eyed. In fact, she had been drinking until 2 a.m. and had not gone to bed until 5 a.m. The Medical Center sent her home after conducting a drug and alcohol screening test. The employee tested positive for being under the influence of alcohol. The Medical Center fired her. When the employee applied for unemployment compensation benefits, the Medical Center contested her eligibility on the grounds that she had engaged in willful misconduct by reporting to work “under the influence” of alcohol , in violation of the Medical Center’s drug and alcohol abuse policy.

At a hearing before an Unemployment Compensation Referee, the Medical Center attempted to prove that the employee appeared for work under the influence alcohol by introducing into evidence the results of the alcohol screening test. However, the employer did not produce a witness at the hearing who had experience in administering the test or interpreting the test results. The test results were admitted into evidence anyway and the employee was denied benefits. The employee appealed to the Commonwealth Court which found that the test results were hearsay and should not have been admitted into evidence because the employer did not properly present a witness who could testify credibly as to the test’s reliability. Accordingly, there was insufficient proof that the employee showed up to work “under the influence” of alcohol.

Then the Commonwealth Court did something interesting. In its opinion, the Court pointed out that the Medical Center’s drug and alcohol abuse policy also prohibited employees from reporting to work unfit for duty, and stated that employees who did, could be terminated. The policy said:

“Lack of fitness for duty is the observation by a supervisor of the staff member’s physical symptoms or behaviors that indicate:

(1) that the individual is, or may be, unable to perform his or her duties or responsibilities and/or to provide patient care safely and effectively; or

(2) inappropriate behavior that may diminish co-workers’ or patients’ confidence in the individual’s ability to perform his or her job satisfactorily; or

(3) uncharacteristic behavior generally associated with intoxication, such as odor, dilated pupils, staggering, boisterous speech, drowsiness, etc.”

The Commonwealth Court said that if an employer has a fitness for duty rule prohibiting employees from showing up to work smelling of alcohol and an employee arrives at work “bearing a strong smell of alcohol,” the employee can be found to have engaged in “willful misconduct and therefore can be precluded from receiving unemployment compensation benefits.” (p.389) The Commonwealth Court sent the case back to the Unemployment Compensation Board of Review to determine whether the employee violated the fitness for duty rule.

Taking its cue from the Commonwealth Court, the Board of Review found that the employee did, in fact, breach the Medical Center’s fitness for duty rule by appearing at work smelling of alcohol and therefore was ineligible for unemployment compensation benefits. The employee then appealed again to the Commonwealth Court which said:

“When there is an employer policy setting forth a lack of fitness for duty and a supervisor observes physical symptoms like blood-shot or glassy eyes and a strong aroma of alcohol that indicate the employee may be unable to perform required duties or provide patient care safely, the employee must pass the smell test. The burden is on the employee who drinks alcohol off duty to do so in a manner that eliminates its smell before reporting for duty…”

Conclusion and Recommendation

An employer’s drug and alcohol abuse policy should have a fitness for duty rule which includes a pass the smell test. The advantage is obvious. Proving that an employee reported to work impaired by alcohol requires either a blood test or some type of breathalyzer test which may be impractical to perform on short notice. The employer is then left with its own seat-of-the-pants judgement as to whether the employee reported to work impaired. A policy like the Medical Center’s avoids this problem entirely. An employee who shows up to work smelling like he has spent the evening with Homer Simpson at Moe’s Tavern has reported to work unfit for duty, regardless of whether he is or is not “impaired.” And that, by itself, is “willful misconduct.”