For both practical and legal reasons, employers cannot control the actions of an employee when the employee is off the clock. Employers may proscribe certain behaviors such as drug usage or speech that reflects poorly on the company, but employers can only react to wrongful conduct after it has occurred. Such is the case with an employee who is charged with driving under the influence. This unexpected development can be unpleasant for both the employer and the employee.
Alcohol Addiction and the Law
While an employer’s first reaction to an employee who is intoxicated at work is usually to terminate the employee, employees have some rights under the law. Under the Americans with Disabilities Act, employers may not discriminate against employees with certain disabilities if the employee can perform his or her essential job functions with reasonable accommodations made for the disability. If there is a legitimate business purpose to exclude employees with a certain disability, employers may do so; for example, a trucking company looking for drivers may reasonably decline to hire the visually impaired.
The Americans with Disabilities Act applies to a wide array of disabilities, including alcohol addiction. If an alcoholic can perform the essential duties for which he or she was hired without the disability affecting his or her performance, the employer may not make hiring or termination decisions based upon that disability. However, if the disability affects the employee’s work and cannot be reasonably accommodated, the employee may be terminated.
Driving Under the Influence and the Five-Minute Meeting
An employer will almost certainly terminate an employee who is arrested for driving under the influence while on the job. The primary reason for this is liability. Employers are vicariously liable to third parties for the actions of their employees assuming that the employee was acting within the course and scope of his or her employment when he or she committed the tortious act. Intoxicated motorists are a hazard and a lawsuit waiting to happen for the employer.
Additionally, an employee who is convicted for driving under the influence will be unavailable to perform the essential duties of his or her job. While it’s true that, as offered by The Wilson Law Firm, “There are many possible defenses to a drunk driving charge,” in Virginia, persons convicted of driving under the influence face a license suspension for up to one year. If an employee is driving while acting within the course and scope of his or her employment, it is likely that the employee is involved in an occupation in which driving is an essential duty. In such a case, the employee may be released from his or her employment.
Assisting an Employee with a Legal Defense
Mounting a legal defense to a charge of driving under the influence can be expensive for the employee, and most employees should expect no assistance. Very few employers would even consider contributing to the legal defense of an employee charged with driving under the influence while on the job. However, it can happen. If the employee is particularly valuable to the firm and his or her absence from the company would cost the firm significant revenue, an employer may provide assistance to the employee.
If the employer does elect to retain and assist the employee, the employer must proceed carefully. A jury may consider an employer who knowingly allows employees accused of driving under the influence to operate vehicles for him or her to be negligent. If an accident occurs, the employer may be liable for negligence, which can result in an award of punitive damages. Punitive damages can greatly exceed the cost of the injury.
While employers can be liable for injuries to third parties for an employee’s act, the employer will generally owe no duty to the employee to assist him or her if he or she is arrested for driving under the influence. Employers have a strong interest in terminating such employees from employment and the few employers who choose not to will usually reassign the employee to a position in which he or she is not responsible for operating machinery. However, talented and highly trained employees are difficult to come by. Employers with an indispensable employee may consider providing assistance to the employee in the form of legal counsel or funds to pursue an independent legal defense.
Ann Bailey posts this research for employers with workers who are facing a DUI charge, particularly in Virginia. The Wilson Law Firm vigorously represents clients of intoxicated driving charges, aggressively fighting to keep their personal rights intact, within all boundaries of the law.
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