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On the job and under the influence?

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Earlier this month, an AirBaltic flight bound for Crete was grounded shortly before take-off after several of its crew members – including both the captain and first officer – failed alcohol tests.

News reports indicate that a passenger alerted local authorities to a concern that the crew had been drinking; and that following a pre-flight check by police, four crew members were taken into custody with blood-alcohol levels in excess of the prescribed “drink-fly” limit. Take-off was then delayed by approximately five hours, until alternate crew members came aboard to operate the flight.

While this situation no doubt (and thankfully) represents a very rare occurrence in the airline industry, the concern that an employee may be on the job and under the influence (i.e. of either alcohol or drugs) is not entirely uncommon.  As an employment lawyer, I’ve received urgent calls from employers with exactly that concern more than a couple of times.

What, then, is an employer to do if he or she suspects that an employee is under the influence of alcohol or drugs?  Although such situations are inevitably tricky to deal with (and therefore best dealt with on a case-by-case basis, usually with the assistance of legal counsel), the following general guidelines are almost always applicable:

  • Prevention: Well before any such situation arises, an employer should take the proactive step of implementing and communicating a policy regarding alcohol and drugs in the workplace. Such a policy should define “impairment”, and should very clearly stipulate, among other things, that (a) employees are not permitted to work while impaired by the effects of alcohol or drugs (including prescription drugs/ medication), (b) the company reserves the right to undertake reasonable and appropriate enquiries if it has a bona fide concern that an employee is under the influence, and (c) the company reserves the right to send any impaired employee home.
  • Fact-Gathering: Ignoring the situation is not an option. Any suspicion that an employee is under the influence should be immediately escalated to management; and management should react swiftly, objectively and fairly. That means not jumping to conclusions based on rumour, but instead moving quickly to determine whether there is a reasonable basis for believing that the employee is impaired.  For example:

i) The manager might approach, observe and speak with the individual to see what (if any) facts suggest that s/he is under the influence – e.g. is s/he behaving erratically?; is s/he slurring his/her words or displaying any other signs of intoxication (e.g. disorientation and/or loss of coordination)?; does s/he smell of alcohol or drugs?; etc.

ii) The manager might speak with other workers in proximity to the employee in question, and enquire as to whether everything is going well with the group that day – i.e. thus inviting those workers to speak up if they have concerns/observations in relation to their colleague being impaired.

Unless those enquiries and observations very clearly establish a “false alarm”, the manager should – in a discrete and professional way – raise the concern directly with the employee, and ask him/her if s/he is under the influence of any alcohol or drugs (including any prescription drugs/ medication that may be causing impairment).

Further to such questioning, the employer may (i.e. depending upon the content of its workplace drug/ alcohol policy, the specific nature of the work, and/or the specific nature of the incident) have a further prerogative to insist that the employee undergo a drug or alcohol test.

In any event, the employer should ensure that all observations and information obtained via its fact-gathering exercise are well-documented, i.e. in the event that any aspect of the process is subsequently challenged.

  • Response: If the employer’s fact-gathering indicates that a worker is or may be impaired, the company’s primary response should be guided by the well-established principle of “safety first” – i.e. the safety of the worker him/herself, of his/her co-workers, of the public, and of surrounding property. Accordingly – and particularly if the worker is in a safety-sensitive position – s/he should be immediately asked to leave his/her work-station and come to a safe location within the workplace.

From there, the questions of (a) how long the worker remains at the “safe location”, and (b) whether s/he is sent home, will depend on the particular circumstances – i.e. including, for example, the level of impairment, whether the individual can safely get home (either on his/her own or with assistance), etc.

  • Follow-Up: Although an incident of impairment on the job may warrant a disciplinary response; there may be other factors mitigating against that.  For example:

i) if the incident is symptomatic of alcohol or drug dependency, that dependency will represent a “disability” under human rights legislation, and will trigger the employer’s “duty to accommodate”; and

ii) if the incident represents the employee’s unanticipated reaction to a validly prescribed medication, the employee’s underlying medical condition may represent a “disability” that likewise requires accommodation.

Indeed, depending upon the particular circumstances of the case, an incident of an employee’s impairment on the job may very well represent a jumping-off point for the employer’s further management of a considerably more complicated situation.

Jason Beeho

About the Author: Jason Beeho brings a real-world sensibility to his representation of employers in all aspects of employment law, including human rights, occupational health & safety, and workplace safety & insurance. Jason enjoys the practice of employment law, and maintains a constant interest in keeping up-to-date on legal developments that could affect his clients.