By Peg Elofson
The claimant was discharged for appearing at work under the influence of alcohol. He was disqualified from benefits upon a finding that he was discharged for misconduct connected with the work. He appealed. A hearing was scheduled before an administrative law judge.
At the Hearing The Employer’s Evidence
The claimant’s manager and two witnesses testified that the claimant appeared at work in the morning and got upset when assigned tasks by his manager. When questioned, the claimant repeated “I don’t know” or would not respond at all. His manager asked him to walk up to the office to discuss the incidents. The witnesses followed behind him, and saw that the claimant was swaying and staggering and had difficulty climbing stairs. He smelled of alcohol and had red, glossy eyes. He admitted that he was out drinking the night before to celebrate his birthday and did not sleep before coming to work. The manager testified that the employer maintains a safety policy, of which the claimant was aware, that prohibits employees from working under the influence of alcohol. The policy does not provide for testing. The manager called the claimant’s daughter to take him home that day. He was discharged when he returned for his next shift.
The claimant admitted that he had drunk 10-12 beers the night before he appeared at work, but disagreed that he was “under the influence” of alcohol at work. He also testified that he did not refuse to do the work requested that day.
The administrative law judge (ALJ) found that the claimant was discharged for misconduct connected with the work. The ALJ found that, although the employer could not prove that the claimant was intoxicated as required by a state statute, the employer was able to prove that the claimant was “under the influence” of alcohol at work, which was prohibited by the employer’s safety policy. The claimant appealed, arguing that the employer failed to prove its case because he was not tested to determine his alcohol level.
The Board of Review (BOR) agreed with the ALJ’s decision. The BOR found that the claimant’s admission that he had drunk 10-12 beers before going to work, combined with the employer’s testimony about his behavior that day, was sufficient evidence to prove that he was unable to perform his duties due to intoxication. The BOR also found that the employer’s policy had placed the claimant on notice that his behavior could cause his discharge. His discharge was properly considered to be for misconduct connected with the work.
1. Different states have different rules regarding the evidence and testimony necessary to prove that the claimant was discharged for testing positive for alcohol or drugs. The evidence necessary can include a written policy, proof the claimant was aware of the policy, proof that the claimant was tested pursuant to the policy, and proof that the claimant had a banned substance in his system. That proof can include test results, sample chain of custody, testimony from a medical review officer, a written report, and other documentation. If you have questions about the proof required in your state, contact your unemployment consultants.
2. Many states require proof that the claimant was intoxicated, or under the influence, while at work. In this case, the employer presented three witnesses who were present on the claimant’s last day of work. They were able to testify about the smell of alcohol, the claimant’s physical condition, his inability to answer questions, and his admission regarding his birthday celebration the night before. In this case, with the witnesses and evidence presented, the employer was able to prove not only that the claimant was under the influence of alcohol at work, but also that his physical condition and behavior significantly affected his ability to work. They were also able to prove that the safety policy prohibited employees from appearing at work unable to do the work due to alcohol. Even though the employer did not test him to determine his exact level of intoxication, they were able to provide sufficient first-hand evidence that his drinking prevented him from working, which was prohibited by the employer’s policy. Register for a demo to learn how Equifax can help your organization streamline your unemployment cost management program. Download a PDF version of this bulletin.