Is an employer required to give a urine test on an employee smelling of alcohol prior to sending them home?

Thre was a complaint about a CNA in a nursing home smelling of alcohol. The HR Director was going to send her home, not fire her. She argued that federal law states that she has to be given a urine test before sending her home.

Asked on November 6, 2018 under Employment Labor Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Unles there exists an employment contract or union agreement to the contrary, there is no requirement that a urine test be administered before sending an employee home if drug/alcohol use by them is suspected. The fact is that in an "at will" work relationship, an employer can set the conditions of work much as they see fit (absent some form of legally actionable discrimination). Accordingly disciplinary action, up to and including termination, can be imposed for any reason or no reason at all, with or without notice.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

No--there is NO federal or state right to a urine test before being sent home for smelling of alcohol unless the nurse had a contract (including a union or collective bargaining contract) giving her that right (if she did have such a contract, the employer had to follow it and afford her whatever rights the contract gave her). In the absence of a contract, all employment is employment at will: an employer may discipline, suspend, or even terminat an employee at any time, for any reason whatesoever, including smelling of alcohol without test results to prove it.


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