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Alcohol Testing in the Workplace: An Employer's Dilemma

Does it solve or create a problem for employers?

Posted by Jared Jacobson on April 30th, 2013

The world’s first finger-touch system developed in order to detect alcohol will be launched shortly.

Reportedly developed by, AlcoSense TruTouch, it is rumored that the new technology utilizes a special infrared light which measures the blood-alcohol content in the skin. It works when users place their fingers on a special touch pad, producing results within seconds. This obviously raises privacy, differential treatment as well as other employment law-related concerns.

Disability Discrimination Case in the Making?

For example, what happens when an employee refuses to take the test…for religious reasons, can s/he be terminated? What if the employee is currently in alcohol treatment, fell off the wagon, is not actually inebriated, but may be considered “disabled” under the law?

In certain jurisdictions, an individual is protected from disability discrimination if such individual is seeking active treatment, however, the individual must not be currently abusing alcohol. A few of the questions posed above may create a gray area which often prompts litigation.

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What if there is a false positive reading, e.g., from a drink the individual had the night before, and which s/he is legally permitted to have, but is in no way under the influence when taking the test?

Public Safety Issues

Perhaps the standard as to whether the test will be protected by the law, or at least can be defended from plaintiff’s employment lawyers, is whether the test is necessary in that specific workplace. For example, a truck driver, other heavy machinery operator or kindergarten teacher. But what about an office worker who is outside of this category of “public safety”?

New Technology

Similar technologies are currently in use for attendance purposes – from calculating clocking in/out of the work place to checking a child in/out of daycare. Although this device addresses a specific situation, the question is whether it solves a problem that is actually a problem, or creates additional issues with which employers may find themselves dealing, as a result of implementing this new technology.

Without knowing more, admittedly, it appears to this author that the device is attempting to solve a problem that is not rampant in our society or workplace specifically, and may wind up causing an employer more trouble than it is worth. For a particular employer that regularly deals with this problem and plans on addressing it though this new technology, it should certainly amend its employment policies/handbook to reflect its new policy and communicate the new plan to employees.

Jared Jacoboson
Jared Jacoboson

Attorney and founder of The Law Firm of Jacobson & Rooks, LLC

Jared Jacobson is one of the founding members of The Law Firm of Jacobson & Rooks, LLC. Jared Jacobson represents individual employees and executives as well as counsels employers in conducting workplace investigations to mitigate risks of employment and whistleblower litigation. Jared regularly performs human resource audits to ensure compliance with state (PA, NJ and NY) and federal discrimination, misclassification and wage and hour laws, as well as the risks associated with whistleblowers. Jared helps his clients understand the importance of investing in pre-emptive annual policy audits and work-place training as well as performing a proper investigation when a complaint is filed or threatened which can be invaluable when compared with the alternative.

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