Employers cannot arbitrarily decide to conduct a breathalyzer test without reasonable suspicion, but the employer could be accused of discrimination. It is valid to perform a breathalyzer test if the employer shows signs of intoxication, such as: To perform a drug or alcohol test, your employee must obtain your written consent. Consent must be given for an alcohol test and a drug test. If you give your consent to a breathalyzer test, this only applies to alcohol-specific tests and not any other substance or disease, your employer must obtain additional consent to perform a drug test. Depending on the nature of your work and/or the circumstances of your particular case, there may be additional requirements for drug or alcohol testing at work. For example, requirements for employers in the marketing or legal sectors may differ from those in the health, rail, truck and other industries. Under certain circumstances, such as state laws and the workplace, employers are allowed to test their employees for alcohol. Here are some factors to consider: As an employer, you are responsible for providing your employees with a safe, drug- and alcohol-free workplace. “We know that seasonal affective disorder is more common at this time of year,” said Pam Calvano, director of the Michiana Employee Assistance Program, which offers employee support programs to employers in St. Joseph County, Indiana. An employer should not test employees just to find out if they have used drugs or alcohol. There has to be a link between testing and making sure people are doing their jobs properly and safely.
A recent case in New Jersey, A.D.P. vs. ExxonMobil Research and Engineering, +2012 N.J. Super. LEXIS 171 (App. Div. 2012) makes it clear that employers should think twice when implementing drug and alcohol testing policies to ensure they are not violating federal and state laws protecting people with disabilities. There are actually certain employee privacy regulations in California that can help you sue your employer for performing alcohol and drug tests on you in the workplace.
If there have been many problems caused by drug or alcohol use at work, the employer may be able to say that employees need to be tested. This is very unusual. If your employer wishes to introduce drug and alcohol testing, these must be included in each employee`s employment contract. If you are already working for a company when it has decided to introduce a drug or alcohol testing policy, you are not required by law to accept changes to its terms of use. In these circumstances, you can refuse to take a test, and if your employer tries to impose the test on you, then you can resign and ask for a “constructive dismissal”. Regardless of the desire to believe in the best people, running a business as an employer sometimes requires preventive measures. Without a company policy, a company – and everyone involved in it – can be affected by a single person and a bad decision. The New Jersey Appeal Division found that the dismissal was unlawful and that the test request was discriminatory because only those who voluntarily self-identified as alcoholics were randomly tested. The Court noted that federal and state law consider alcoholism a disability and therefore prohibit employers from discriminating against alcoholics on the basis of their alcoholism.
Employees are required by law to report accidents such as property damage or workplace injuries. Again, the employer must have reasonable grounds to suspect that he or she has taken a blood alcohol test even after a workplace accident. But your employer must always demonstrate that there is a connection between testing and the ability to do your job properly and safely. The court clarified that employers have the right to take adverse employment action (such as dismissal, downgrading, etc.) against an employee with a disability if the disability prevents the employee from properly performing his or her duties or if keeping the employee at work would create a significantly increased risk of significant harm to the employee or his or her employees. However, in this case, ExxonMobil did not argue that A.D.P. was fired because she posed a safety risk or did not perform her job, as there was no evidence that A.D.P. was suffering from the effects of alcohol consumption or had problems with her work performance when she returned to work after her rehabilitation. Instead, A.D.P. was fired solely on the grounds that she had violated company policies — she failed the random blood alcohol test.
Today, we asked our Los Angeles labor attorney to explain when it is legally acceptable for California employers to conduct drug and alcohol testing on candidates and existing employees. Here at the law firm Rager, our motto is “Know your employment rights. If they are injured, sue the employer. Even though the nature of the work can be dangerous, this is not a sufficient reason. For example, employers cannot force workers to be tested for drugs or alcohol simply because they are using machinery or equipment that can cause injury. In the event of interference with the employee`s duties, the employer is entitled to suspend or terminate the contract. Other reasons why your employer may test you: If your employer wants to introduce a drug or alcohol test, they must clearly state this in your contract or employee handbook. The policy should read as follows: According to the U.S. Equal Employment Opportunity Commission, an alcoholic is a person with a disability and is protected by the Americans with Disabilities Act (ADA) if he or she is qualified to perform the essential functions of a job. In such cases, an employer may be required to accommodate the person. Human rights laws state that an employer cannot discriminate against you because of a disability. This means that an employer cannot discriminate against you because: You may want to talk to an employment lawyer to find out if your employer is legally authorized to test for drugs or alcohol in the workplace.
Here at the law firm Rager, our top los Angeles lawyers offer free advice to help you understand your employment rights. Hoyman said the employer`s response should also take into account the company`s overall experience with the employee, the impact of alcohol consumption on the company and workplace, and the treatment of others in similar circumstances. However, our Los Angeles labor attorney, Jeffrey Rager, warns that there are no laws or regulations explicitly prohibiting employers from conducting drug testing on applicants. Generally, employers in California are allowed to test their candidates for drugs and alcohol before hiring, as long as these tests are done fairly and do not discriminate against certain groups of people. Addiction experts suggest employers focus on what they can observe – bloodshot eyes, smell of alcohol, slurred speech – without trying to understand the cause. In Los Angeles and throughout California, employee complaints about alcohol and drug testing in the workplace have increased.