AKBill
En-Route
Agreed, 100%. Getting tested on the way to work where you are not getting paid, is wrong. Company policy is you show up at the boat for work we will test you.
So Who Takes a Breathalizer for Alcohol Every Day at Work?
- Thread starter AKBill
- Start date
Agreed, 100%. Getting tested on the way to work where you are not getting paid, is wrong. Company policy is you show up at the boat for work we will test you.
PaulS
Touchdown! Greaser!
That really sucks. I tell my kids, I was taught the average human liver can process 1 ounce of alcohol per hour. So, if in the last few hours you've had 20 ounces of alcohol (don't laugh, I know people who do this) your body can take up to 20 hours to rid the alcohol. Sounds like this guy's issue.
AKBill
En-Route
Folks don't show up drunk to work, Half of the employees travel in from down south, they have a few drinks in their travels to work. They stay in camp when they work. They are going to camp to sleep, eat and get ready to work the next day. Yet they are fired 24 hours before their shift starts for showing up at the boat with more than .02 alcohol breath test..
I am no lawyer, but below are some of the AK statutes that allow testing. Two things that jump out:
- as there is presumably not a drug lab on the ferry dock, this was an on-site test and based on AS 23.10.645 (c) the employer is not allowed to use an on-site test for permanent personnel action, only to keep someone off a worksite for the day.
- Under AS 23.10.645 (a) the testing needs to be performed according to manufacturers instructions. Your local DUI shyster will be able to tell you chapter and verse which devices have which restrictions in the manual, a level of .02 is lower than even what the FAA requires and it starts to get to a level where results are subject to interpretation.
Your colleague needs a labor lawyer who is familiar with AK employee drug and alcohol testing. Given the high prevalence of drugs and alcohol up north, that's probably pretty much every lawyer who does labor law.
AS 23.10.620. Employer Policy.
(a) Under AS 23.10.600 - 23.10.699, an employer may only carry out the testing or retesting for the presence or evidence of use of drugs or alcohol after adopting a written policy for the testing and retesting and informing employees of the policy. The employer may inform employees by distributing a copy of the policy to each employee subject to testing or making the policy available to employees in the same manner as the employer informs its employees of other personnel practices, including inclusion in a personnel handbook or manual or posting in a place accessible to employees. The employer shall inform prospective employees that they must undergo drug testing.
(b) The written policy on drug and alcohol testing must include, at a minimum,
(1) a statement of the employer's policy respecting drug and alcohol use by employees;
(2) a description of those employees or prospective employees who are subject to testing;
(3) the circumstances under which testing may be required;
(4) the substances as to which testing may be required;
(5) a description of the testing methods and collection procedures to be used, including an employee's right to a confirmatory drug test to be reviewed by a licensed physician or doctor of osteopathy after an initial positive drug test result in accordance with AS 23.10.640 (d);
(6) the consequences of a refusal to participate in the testing;
(7) any adverse personnel action that may be taken based on the testing procedure or results;
(8) the right of an employee, on the employee's request, to obtain the written test results and the obligation of the employer to provide written test results to the employee within five working days after a written request to do so, so long as the written request is made within six months after the date of the test;
(9) the right of an employee, on the employee's request, to explain in a confidential setting, a positive test result; if the employee requests in writing an opportunity to explain the positive test result within 10 working days after the employee is notified of the test result, the employer must provide an opportunity, in a confidential setting, within 72 hours after receiving the employee's written notice, or before taking adverse employment action;
(10) a statement of the employer's policy regarding the confidentiality of the test results.
(c) An employer may require the collection and testing of a sample of an employee's or prospective employee's urine or breath for any job-related purpose consistent with business necessity and the terms of the employer's policy, including
(1) investigation of possible individual employee impairment;
(2) investigation of accidents in the workplace; an employee may be required to undergo drug testing or alcohol impairment testing for an accident if the test is taken as soon as practicable after an accident and the test is administered to employees who the employer reasonably believes may have contributed to the accident;
(3) maintenance of safety for employees, customers, clients, or the public at large;
(4) maintenance of productivity, the quality of products or services, or security of property or information;
(5) reasonable suspicion that an employee may be affected by the use of drugs or alcohol and that the use may adversely affect the job performance or the work environment.
(d) In addition to tests required under (c) of this section, an employer may require employees or groups of employees to undergo drug testing on a random or chance basis.
(e) If an employer institutes a policy of drug testing or alcohol impairment testing under AS 23.10.600 - 23.10.699, the policy must identify which employees or positions are subject to testing. An employer must test all or part of the work force based on consideration of safety for employees, customers, clients, or the public at large. An employer may not initiate a testing program under AS 23.10.600 - 23.10.699 until at least 30 days after the employer notifies employees of the employer's intent to implement the program and makes written copies of the policy available as required by (a) of this section.
(f) The provisions of AS 23.10.600 - 23.10.699 may not be construed to discourage, restrict, limit, prohibit, or require on-site drug testing or alcohol impairment testing.
- as there is presumably not a drug lab on the ferry dock, this was an on-site test and based on AS 23.10.645 (c) the employer is not allowed to use an on-site test for permanent personnel action, only to keep someone off a worksite for the day.
- Under AS 23.10.645 (a) the testing needs to be performed according to manufacturers instructions. Your local DUI shyster will be able to tell you chapter and verse which devices have which restrictions in the manual, a level of .02 is lower than even what the FAA requires and it starts to get to a level where results are subject to interpretation.
Your colleague needs a labor lawyer who is familiar with AK employee drug and alcohol testing. Given the high prevalence of drugs and alcohol up north, that's probably pretty much every lawyer who does labor law.
AS 23.10.620. Employer Policy.
(a) Under AS 23.10.600 - 23.10.699, an employer may only carry out the testing or retesting for the presence or evidence of use of drugs or alcohol after adopting a written policy for the testing and retesting and informing employees of the policy. The employer may inform employees by distributing a copy of the policy to each employee subject to testing or making the policy available to employees in the same manner as the employer informs its employees of other personnel practices, including inclusion in a personnel handbook or manual or posting in a place accessible to employees. The employer shall inform prospective employees that they must undergo drug testing.
(b) The written policy on drug and alcohol testing must include, at a minimum,
(1) a statement of the employer's policy respecting drug and alcohol use by employees;
(2) a description of those employees or prospective employees who are subject to testing;
(3) the circumstances under which testing may be required;
(4) the substances as to which testing may be required;
(5) a description of the testing methods and collection procedures to be used, including an employee's right to a confirmatory drug test to be reviewed by a licensed physician or doctor of osteopathy after an initial positive drug test result in accordance with AS 23.10.640 (d);
(6) the consequences of a refusal to participate in the testing;
(7) any adverse personnel action that may be taken based on the testing procedure or results;
(8) the right of an employee, on the employee's request, to obtain the written test results and the obligation of the employer to provide written test results to the employee within five working days after a written request to do so, so long as the written request is made within six months after the date of the test;
(9) the right of an employee, on the employee's request, to explain in a confidential setting, a positive test result; if the employee requests in writing an opportunity to explain the positive test result within 10 working days after the employee is notified of the test result, the employer must provide an opportunity, in a confidential setting, within 72 hours after receiving the employee's written notice, or before taking adverse employment action;
(10) a statement of the employer's policy regarding the confidentiality of the test results.
(c) An employer may require the collection and testing of a sample of an employee's or prospective employee's urine or breath for any job-related purpose consistent with business necessity and the terms of the employer's policy, including
(1) investigation of possible individual employee impairment;
(2) investigation of accidents in the workplace; an employee may be required to undergo drug testing or alcohol impairment testing for an accident if the test is taken as soon as practicable after an accident and the test is administered to employees who the employer reasonably believes may have contributed to the accident;
(3) maintenance of safety for employees, customers, clients, or the public at large;
(4) maintenance of productivity, the quality of products or services, or security of property or information;
(5) reasonable suspicion that an employee may be affected by the use of drugs or alcohol and that the use may adversely affect the job performance or the work environment.
(d) In addition to tests required under (c) of this section, an employer may require employees or groups of employees to undergo drug testing on a random or chance basis.
(e) If an employer institutes a policy of drug testing or alcohol impairment testing under AS 23.10.600 - 23.10.699, the policy must identify which employees or positions are subject to testing. An employer must test all or part of the work force based on consideration of safety for employees, customers, clients, or the public at large. An employer may not initiate a testing program under AS 23.10.600 - 23.10.699 until at least 30 days after the employer notifies employees of the employer's intent to implement the program and makes written copies of the policy available as required by (a) of this section.
(f) The provisions of AS 23.10.600 - 23.10.699 may not be construed to discourage, restrict, limit, prohibit, or require on-site drug testing or alcohol impairment testing.
AS 23.10.640. Testing Procedures.
(a) Sample collection and testing for alcohol impairment and drugs under AS 23.10.600 - 23.10.699 shall be performed under reasonable and sanitary conditions. The person collecting samples shall document the sample, including labeling the sample to preclude to the extent reasonable the possibility of misidentification of the person tested in relation to the test result provided, and shall provide the person to be tested with an opportunity to provide medical information that may be relevant to the test, including identifying current or recently used prescription and nonprescription drugs.
(b) Sample collection, storage, and transportation to the place of testing shall be performed in a manner reasonably designed to preclude the possibility of sample contamination, adulteration, or misidentification.
(c) Sample testing must comply with scientifically accepted analytical methods and procedures. Except for on-site testing under AS 23.10.645 , drug testing shall be conducted at a laboratory approved or certified by the Substance Abuse and Mental Health Services Administration or the College of American Pathologists, American Association of Clinical Chemists.
(d) Drug testing, including on-site drug testing, must include confirmation of a positive drug test result. The confirmation must be by use of a different analytical process than was used in the initial drug screen. The second or confirmatory drug test shall be a gas chromatography mass spectrometry. An employer may not rely on a positive drug test unless the confirmatory drug test results have been reviewed by a licensed physician or doctor of osteopathy. The physician or osteopath shall
(1) contact the employee within 48 hours and offer an opportunity to discuss the confirming test result;
(2) interpret and evaluate the positive drug test results for legal use; and
(3) report test results that have been caused by prescription medication as negative.
(e) A drug test conducted under this section or in an on-site test under AS 23.10.645 for a drug for which the United States Department of Health and Human Services has established a cutoff level shall be considered to have yielded a positive result if the test establishes the presence of the drug at levels equal to or greater than that cutoff level. For a drug for which the United States Department of Health and Human Services has not established a cutoff level, the employer shall, in the written policy under AS 23.10.620 , inform employees of the cutoff level that the employer will use to establish the presence of the drug.
(a) Sample collection and testing for alcohol impairment and drugs under AS 23.10.600 - 23.10.699 shall be performed under reasonable and sanitary conditions. The person collecting samples shall document the sample, including labeling the sample to preclude to the extent reasonable the possibility of misidentification of the person tested in relation to the test result provided, and shall provide the person to be tested with an opportunity to provide medical information that may be relevant to the test, including identifying current or recently used prescription and nonprescription drugs.
(b) Sample collection, storage, and transportation to the place of testing shall be performed in a manner reasonably designed to preclude the possibility of sample contamination, adulteration, or misidentification.
(c) Sample testing must comply with scientifically accepted analytical methods and procedures. Except for on-site testing under AS 23.10.645 , drug testing shall be conducted at a laboratory approved or certified by the Substance Abuse and Mental Health Services Administration or the College of American Pathologists, American Association of Clinical Chemists.
(d) Drug testing, including on-site drug testing, must include confirmation of a positive drug test result. The confirmation must be by use of a different analytical process than was used in the initial drug screen. The second or confirmatory drug test shall be a gas chromatography mass spectrometry. An employer may not rely on a positive drug test unless the confirmatory drug test results have been reviewed by a licensed physician or doctor of osteopathy. The physician or osteopath shall
(1) contact the employee within 48 hours and offer an opportunity to discuss the confirming test result;
(2) interpret and evaluate the positive drug test results for legal use; and
(3) report test results that have been caused by prescription medication as negative.
(e) A drug test conducted under this section or in an on-site test under AS 23.10.645 for a drug for which the United States Department of Health and Human Services has established a cutoff level shall be considered to have yielded a positive result if the test establishes the presence of the drug at levels equal to or greater than that cutoff level. For a drug for which the United States Department of Health and Human Services has not established a cutoff level, the employer shall, in the written policy under AS 23.10.620 , inform employees of the cutoff level that the employer will use to establish the presence of the drug.
AS 23.10.645. On-Site Testing.
(a) An employer may include on-site drug and alcohol tests of employees and prospective employees as part of the employer's drug and alcohol testing policy under AS 23.10.600 - 23.10.699. In on-site testing under this section, an employer may only use products approved by the Food and Drug Administration for employee testing and shall use the products in accordance with the manufacturer's instructions. On-site testing under this section may only be conducted by a test administrator who is certified under AS 23.10.650 (b).
(b) In on-site testing under this section, the specimen to be tested must be kept in sight of the employee or applicant who is the subject of the test. The test administrator shall
(1) conduct the test in a manner that allows the subject of the test to observe the testing procedure and the results; in the case of a sight-impaired employee, the employee may request the presence of an observer; however, the test administrator is not required to delay collection of the sample or administration of the test because of the sight-impaired employee's request;
(2) complete the sample documentation required under AS 23.10.640 (a);
(3) prepare a written record of the results of the on-site test.
(c) An employer may not take permanent employment action against an employee based on an unconfirmed, screen, positive on-site test result. If an employer takes temporary adverse employment action based on an on-site test result, the employer shall restore the employee's wages and benefits if the confirmatory test result is negative or if the employee demonstrates that the positive test result was caused by drugs taken in accordance with a valid prescription of the employee or by lawful nonprescription drugs.
(a) An employer may include on-site drug and alcohol tests of employees and prospective employees as part of the employer's drug and alcohol testing policy under AS 23.10.600 - 23.10.699. In on-site testing under this section, an employer may only use products approved by the Food and Drug Administration for employee testing and shall use the products in accordance with the manufacturer's instructions. On-site testing under this section may only be conducted by a test administrator who is certified under AS 23.10.650 (b).
(b) In on-site testing under this section, the specimen to be tested must be kept in sight of the employee or applicant who is the subject of the test. The test administrator shall
(1) conduct the test in a manner that allows the subject of the test to observe the testing procedure and the results; in the case of a sight-impaired employee, the employee may request the presence of an observer; however, the test administrator is not required to delay collection of the sample or administration of the test because of the sight-impaired employee's request;
(2) complete the sample documentation required under AS 23.10.640 (a);
(3) prepare a written record of the results of the on-site test.
(c) An employer may not take permanent employment action against an employee based on an unconfirmed, screen, positive on-site test result. If an employer takes temporary adverse employment action based on an on-site test result, the employer shall restore the employee's wages and benefits if the confirmatory test result is negative or if the employee demonstrates that the positive test result was caused by drugs taken in accordance with a valid prescription of the employee or by lawful nonprescription drugs.
Not anymore. Note the past tense.
What is the employers testing policy and how does the employee handbook define the worksite or employers premises. Do they own (charter) the ferry ?
ARFlyer
En-Route
I had a friend who was a farm hand that went to work or came back home drunk. Apparently they drank during work to make it more "fun". I asked him what would happen if they screwed up or got hurt. He said that if it happens that it's your fault you were dumb.
Mason
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Mase
Zeldman
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I think I would pass out just going into the entrance to an underground mine. I am so claustrophobic I get nervous stepping into the shower....
Ever have any trouble with noobies going under ground?
scorpio
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scorpio
Law Enforcement and Prosecutors claim the tests are beyond reproach. Defense attorneys and the accused claim they are completely inaccurate. The experts say whatever the person paying their bill wants to hear.
The claim of a 50% margin of error is completely inaccurate. If that were scientifically accurate there is zero chance it would be admissible in court.
The claim of a 50% margin of error is completely inaccurate. If that were scientifically accurate there is zero chance it would be admissible in court.
Unit74
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Unit74
You post an activist/lobbyists website as facts?
I take it you've never spent any time in a courtroom, talking with industry experts or any formal anything other than 14 seconds on Google?
Nice try, but unbiased facts drive the case, not conjure and agendas.
I take it you've never spent any time in a courtroom, talking with industry experts or any formal anything other than 14 seconds on Google?
Nice try, but unbiased facts drive the case, not conjure and agendas.
AKBill
En-Route
I think I would pass out just going into the entrance to an underground mine. I am so claustrophobic I get nervous stepping into the shower....
Ever have any trouble with noobies going under ground?
Noobies underground deserves a thread on it's own....
Mason
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Mase
I defer to your expertise.
Fearless Tower
Touchdown! Greaser!
The Navy started doing this a little over a year ago. One of SECNAV's 'good ideas' with no documented underlying problem to address. But the cost to the taxpayer is ridiculous.
Unit74
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AKBill
En-Route
My coworker helped me do a compression test today as part of my annual. He was upset to say the least. I asked what did you blow and when did you go to bed. He said .07 and 7pm.
I think the tester may have been wrong. I don't see blowing .07 with 9 hours sleep is possible, unless he drank a 5th of whiskey before he went to bed.. He did not question the results or ask for second test by another source. His bad..
I also found out the general manager of the mine is leaving the first week of 2017. With any luck we can have the new general manager look at the case and overrule my coworkers termination.
I don't understand why the Human Recourse's personal could let this happen without a secondary test..
By the way the compression test showed #1 cylinder has blow by past the rings. See my post "High oil Consumption". Going to re-ring and hone the cylinder, it has about 65 hours on it. I think I messed up and used the wrong oil for cylinder break in.
I think the tester may have been wrong. I don't see blowing .07 with 9 hours sleep is possible, unless he drank a 5th of whiskey before he went to bed.. He did not question the results or ask for second test by another source. His bad..
I also found out the general manager of the mine is leaving the first week of 2017. With any luck we can have the new general manager look at the case and overrule my coworkers termination.
I don't understand why the Human Recourse's personal could let this happen without a secondary test..
By the way the compression test showed #1 cylinder has blow by past the rings. See my post "High oil Consumption". Going to re-ring and hone the cylinder, it has about 65 hours on it. I think I messed up and used the wrong oil for cylinder break in.
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abqtj
Pre-takeoff checklist
Another coworker uses mouth wash in the morning, two days in a row he tested positive. He was told to change his personal hygiene habits so he dose not test positive...
That right there gives him a case of wrongful termination. They bent the rule for others.
Sent from my iPad using Tapatalk
Doggtyred
En-Route
If you knew the rules were that draconian WHY would you chance it? He was aware of the rules right? Yes he made a mistake. It also wasn't an uninformed one either. He made a conscious choice to drink to the point that he was going to have detectable alcohol the morning, knowing the employers policy. Free will is a b!tc# sometimes.
Is the rule something the insurer's mandated? Is there a governmental mandate behind it? Is the rule something instituted because of a prior problem or accident?
Short and sweet of it is.. unless you have a union at your back, negotiating policy on your behalf you are pretty much at the mercy of the company. Good luck.
PaulS
Touchdown! Greaser!
Actually I would question when it was last calibrated.
Matthew
Touchdown! Greaser!
As much as it sucks, it might be outside the window to challenge the test results. It MIGHT be inside the window to challenge the dismissal - especially when some positive results are given a second chance.
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Snorting his way across the USA
That thought did occur to me.
AKBill
En-Route
The company change ownership a few years ago and the new owners have changed a lot of the policy's. I put up with the long hours and policy changes because they pay well and their other benefits such as 401K and health insurance are very good...
The safety policies are out there as well. Example, you are required to chock a tracked D-9 dozer, like a dozer is going to move on its own
Did you read the thread?
Because the good outweighs the bad? Because not everyone has the luxury of being able to move somewhere chasing a job? Because ones entire family lives nearby? Because one is part of a community one loves?
There can be many reasons. None of them make this policy fair nor does making the decision to stay mean that one gives up the right to comment on the things that aren't done right.
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Snorting his way across the USA
Oh don't get me wrong, regardless of where you stand on the issue of workplace alcoholism, it's invasive and draconian. The whole country is unfortunately turning in to a police state. No, don't think for one second I support it. That said, I would probably still move on. Who knows what other intolerant policies they may have. The breathalyzer thing is probably the tip of the iceberg.
PaulS
Touchdown! Greaser!
You know, I'm having a hard time with people wanting to rid policies that make this jobsite more safe. It sounds like this company pays very well and has great benefits, I'm sure that is partly due to their expectations of their employees. I'm willing to bet that for each person who doesn't like the rules there are 20 waiting for a job who would gladly accept them. Your friend was drunk, he knew the policy and it sounds as though he drinks excessively to be able to function at that level of intoxication. This is exactly the reason this policy exists, I'm sure, to make sure functional alcoholics are sober at work, or if I am wrong about this guy, inexperienced drinkers from showing up drunk. Mining is a dangerous job and were I there I would want my co workers sober.
AKBill
En-Route
I agree with you. Knowing the individual I have a hard time believing he was intoxicated. I do not have all the facts just what he and others have said. They did not give him anything in writing stating what he blew just a statement you of what he blew and you are terminated.
Clark1961
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While the goals of drug/alcohol testing may be laudable the execution can be lacking. From another post in this thread Alaska state law addresses the potential for false positives by either limiting the allowable job action or requiring a lab test with additional sampling.
I won't even go into the problems of false accusation such as the police report in the Boise ATC incident...at least the testing exposed the problems with report.
Doggtyred
En-Route
Whats invasive and draconian about not wanting industrial workers with detectable alcohol or other intoxicants WHILE ON THE JOB? Sorry.. not sympathetic.
I work in a profession where I can lose it all (license, job, reputation, livelihood WITH Public database reporting) if I'm impaired on the job. If I self report a problem I get one chance to save my license (not necessarily my job)
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Snorting his way across the USA
You missed my point in its entirety.
The camel's nose is in the tent.....................
Take rights away one at a time end slowly so no one will notice.
mscard88
Touchdown! Greaser!
Always cracked me up at the airline when we were tested. It was always after the end of whatever trip you were on, like a 3 or 4 day trip. We always thought wouldn't they want to check you before you started flying? Think they wanted to keep the schedule moving and test you after you were off. I dunno.
Doggtyred
En-Route
Take away who's rights? The employers right to have a drug and alcohol free workplace?
Doggtyred
En-Route
No.. I didn't. I just chose to ignore it. Its a crappy point that is invalid. Unless you have a union and a contract you are a right to work/at will employee. You agree to it, or you dont work there. You say you'd walk. You might have that luxury where you are. I'm guessing where they are at its the only good paying gig in the region, and those who choose to live there there have to toe the line if they want to work there at the one good paying place. If they (that outfit) were spending the money on daily 100% breathalyzers, it makes me wonder just how much of a problem they had. The equipment and QC for that isn't cheap. Its a business decision. And clearly they saved money by spending money. Was this in an indiginous back country town with an alcohol problem?
And the rights of the other employees to work with sober co-workers. It's a mine, you dont want someone buzzed operating heavy equipment near you.
Since people seem to have forgotten the scenario. Let's remember that the breathalyzer in this case was being administered nearly a day before the operation of heavy equipment. If this were a safety issue, they would administer it at the point of entry of the mine.
Stewartb
Final Approach
A day before? Bill described being tested before boarding a boat that transports workers to the mine prior to a shift. I'm guessing there are no taxis to take you home once you get to the other side.
I know the owner of a very popular fishing charter business that has a no alcohol policy for all his crew and staff members. Not for hours of duty but from date of hire until end of season. On duty or off. Have a drink, get fired. He doesn't have any problem keeping good crews and nobody that works for him complains about his policy.
I know the owner of a very popular fishing charter business that has a no alcohol policy for all his crew and staff members. Not for hours of duty but from date of hire until end of season. On duty or off. Have a drink, get fired. He doesn't have any problem keeping good crews and nobody that works for him complains about his policy.
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PaulS
Touchdown! Greaser!
I thought he wrote before the boat ride, which takes 45 minutes, then the 9 hour shift starts.
Lindberg
Final Approach
Obviously none of us were there, but it seems very unlikely that they terminated a 22-year model employee for a single, undocumented bad result, especially when others have been given multiple chances. It sounds like there's going to be more to the story.