Can you be fired and collect unemployment because someone smelled alcohol on your breath?
Updated : September 29th, 2022
Posted by Anonymous (Portland)
I went out for a drink the night before work and the next day a girl smelled alcohol on my breath though I was able to function in my job perfectly fine with witnesses. If they fire me for that, can I get Unemployment?
Smelling of Alcohol Isn’t Proof Positive Alone There is Work Misconduct
Assuming you’re located in Portland, Oregon First, you need to read 657.176 here. You’ll have to scroll down a bit to find it, but it will tell you what can disqualify you from benefits.
Each state can be different as to what is needed to prove a violation of an employer’s drug/alcohol policy. Even when two states have very similar statutes, it can be how the state interprets the statute that raises the bar on proving the truth to be a fact.
A discharge means the burden to prove misconduct to deny unemployment benefits, is that of the employer. So you need to see the bar they must reach, in your own case.
My first thought, given the information you provided is to ask you…Did the employer send you for a test to confirm your blood alcohol level?
A large part of Oregon’s unemployment disqualification statute has to do with exactly this subject.
It is extremely difficult for an employer to show good cause for firing someone for drug or alcohol use without a test confirming use. Of course if they have good cause to request the test and you refuse the test…they could now possibly prove insubordination for refusing to submit to taking the test.
Of course, this is all dependent upon an employer’s written policy about drug, or alcohol use.
Comments for Can you be fired because someone smelled alcohol on your breath and collect unemployment
Well, That’s an Interesting Way to Look At It, But Are You Referring to Unemployment Insurance?
I thought portions of your argument were interesting.. even if some of it required me to suspend awareness of all the other consequences an employer thinks about as being far worse financial liabilities, than paying for unemployment benefits, whether to a construction worker, or an investment banker.
Cuz frankly, you both likely smell the same, at an unemployment hearing.
I know any employer, at least those with an HR department, wouldn’t just discharge someone for only smelling like alcohol, which I’d say would be highly likely, after consuming 26 ounces between quitting and starting time.
But, let’s do focus on collecting unemployment benefits if fired for being intoxicated, or if the employer just wants to escape the employee and might not follow through on the ability to deny benefits.
Smelling like alcohol isn’t proof of work related misconduct.
What is proof, is an alcohol/drug test, with the proper chain of custody paperwork. An employer who smells it, follows up by sending employees for the test, on the clock and that is what to use as evidence to confirm employer’s testimony about a reasonable suspicion to test, at any point during work.
Which, I would argue most employees would still be intoxicated in the morning and a safety hazard, even at a desk job, after consuming 26 ounces of vodka the night before.
Or, they could just be an off the charts, high functioning alcoholic, with only minor liver damage.
Without the testing, an employer would likely be sunk on termination with regard to the misconduct issue.
But you always have to look for a way around the obvious. Does the employer who didn’t test, have a corroborating witness willing to testify to the claimant’s drunken behavior, or smell?
Or maybe the employer just has to cross their fingers to hope the claimant comes to their rescue and possibly shows up for the phone, or in person hearing, too intoxicated to know what’s obvious to the sober people in attendance.
Happened to me 3 times
I admit I drink – a lot – and my drink of choice is vodka. I haven’t been drunk more than 3 or 4 times in the past 2-3 years as I’m a sipper not a chugger.
I never drink at work, ever, I usually drink tea (earl grey to be exact).
I have been terminated because I “smell like alcohol” 3 or 4 times (the fourth I’m not sure because it wasn’t mentioned).
Personally I find it grossly annoying. I am free to do on my own time whatever I choose. I even had some goof paying me $11.50 to move auto parts tell me not to drink the night before work (like I give a F for such a crappy job).
As far as I’m concerned, and as far as general case law goes, provided you can do the job as well as an ordinary person, are not a safety hazard, and are not visibly intoxicated, and did not bring alcohol to the premises (if this is their policy), they cannot terminate you “with cause”.
So if I want to drink 26 ounces of vodka after I get home on Monday, but make it to work Tuesday morning on time, reeking of liquor from the night before, but am not intoxicated, staggering, slurring my words, or a safety hazard, and can do my job as well as an ordinary person would be expected to do it, that is legal. Some employers, however, feel otherwise.
Of course, if you work in a client facing environment, reeking like liquor would not allow you to do a job as well as an ordinary person would be expected to do.
However this has happened to me mostly in construction labor environments, which befuddles me. My trade is investment banking, and we had 2 liquor cabinets and 3 beer fridges, with a texas mickey of vodka behind the boss’ desk. Thats about as client facing as you can get. But on a construction site, they freak out and give you the boot.
Honestly, I don’t understand why anyone on a construction site gives a damn why a laborer making $13-$17 an hour reeks like liquor. It’s like, who cares?! You’re working outside in the cold and rain, lifting heavy objects and digging all day, getting sparks blown all over you with grinders cutting steel, pounding holes into concrete with a 25 lb impact drill… Like you come home friggin *sore* and miserable.
What do these idiots think, that they are working in an office?
Can you be fired because someone smelled alcohol in your tea and not your breath and collect unemployment?
I had to go back and read the original question and the answer I gave.
First of all, I should have paid more attention to what the question was asking, same as you and distinguish between being fired for something smelling like alcohol, be it breath or a glass of liquid.
Yes, you can be fired for pretty much any reason an employer deems to fire you, however when it comes to that discharged person collecting unemployment benefits, you have to prove misconduct actually occurred because a termination from employment put the burden of proof on the employer.
So, I’ll put it this way, if I were an employer and I had an employee who I suspected of consuming alcohol, I would refer to the employee handbook I would have given to every employee at time of hire and followed my policy regarding consuming alcohol or doing drugs while at work.
Why? Because the policy would be framed in such a way as to allow management legitimately concerned a violation was being committed could take the appropriate action to prove or disprove an accusation.
So you tell me, would you have an argument to collect unemployment if you were fired because someone could only testify that your tea, not your breath smelled like alcohol?
Or would the employer witness have additional testimony to compel the unemployment dept. to find them more credible than you at your word?
I am currently going through the same thing.
I worked at a job for ONE day and they claimed that I was glossy eyed and whispering after returning from lunch and smelled like alcohol. I had been at work since 545am. Meaning i woke up at 4am to look presentable and get there in time. I am currently about to start a new job and now (6 months after this incident) they are filing for a hearing one week into starting said job. I offered to take a test that day which was denied. I am hoping that the judge will take this into consideration. They have already charged me two weeks of unemployment 6 months later and a $100 fine that’s $900!!!!You aren’t the only one who’s going through this misery. Stay strong, and just be honest.
Drug and alcohol rules about getting unemployment benefits
I went through the same thing and lost my job of 15 years and they denied unemployment. Once again check the state law and get an attorney if you can cause when you try to get another job and they call your last job, guess what human resources is going to tell them. It makes you seem like you was drinking at work and being an alcoholic.
Posted by Candrell
I was working for a temp service,and then I had an accident on the job were the chair had rolled out from under me by a bit fan and I ended up falling on the floor hurting my right hip.I was in serious pain for about 3 weeks and on the 8/13/2010 I was seen by the doctor at which I was given a drug test. So I did not get the results back until the 8/20/2010. My test came back positive, but on my separation notice it says (Post Accident drug screen was positive for Cannabinoid. So the question is will this stop me from collecting my unemployment benefits which the temp service did not have any more work for the temps that were employed by them including and I have been employed with them from 1/15/2010 to 8/13/2010.
Considering that the drug test was administered a full two weeks after the workplace injury I think,
you need a lawyer.
It’s not just unemployment I would be concerned about, but worker’s comp and payment for any of the doctor bills for the accident.
Post accident drug tests, I believe, are supposed to be given at the time of the accident .. seems to me the employer was just a bit lax .. getting this done.
My advice is to seek legal advice. I’m not kidding or joking around here. Your issue extend beyond unemployment.