What are the laws on drinking before work for a company in Minnesota? If this employee is suspected of drinking before work, can you require them to take a BAT test?
We have a situation that one of the employees working with this person thought they smelled liquor on their breath. The employee in question is able to perform their desk assignments in the office, and do not seem to have any issues. Our current policy on this is to process pre-employment drug testing on all new hires, but we do not do random testing after that. Only our DOT drivers have random drug testing.
Minnesota severely limits the rights of the employer to perform drug or alcohol tests. Unless this employee is involved in a safety-sensitive job (such as truck driver, fork lift operator or surgeon) you do not have the right to perform random drug or alcohol tests. (Another exception: professional athletes.)
It is far easier for a Minnesota employer to address any performance issues resulting from intoxication, rather than suspected use of alcohol.
You can certainly have a one-on-one counseling session with this employee, let him know that a coworker thought they smelled alcohol on his breath, and ask him about it. Ideally you would have this conversation the same day, while the employees inhibitions are lower. In some cases, the employee will admit alcohol use, as in *I only had two Bloody Marys before work!* or *I stopped drinking at 7 am!* If you have a company policy prohibiting the use of alcohol before or during work, then you can act on that policy.
Alcohol addiction is a disability under ADA. The best practice would be to refer the employee to alcohol treatment or rehab, rather than terminating him or her. However, ADA does not require that you tolerate repeated instances of intoxication while at work.
Also be aware that under state law, you cannot question the employee about over-the-counter or prescription medication unless the employee fails a drug test.
As difficult as this is, if the employee does not admit intoxication, our recommendation is that you let this go. An employee who comes to work drunk will eventually have performance problems as well, which you can address without legal ramifications.
Read more about this at: http://www.dol.gov/asp/programs/drugs/Said/StateLaw.asp?id=720
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