What Do You Do With An Employee Drinking Issue?

A recent jury verdict for an employer in the United States District Court for the Eastern District of Michigan raised a number of issues that could have been devastating for the employer.

Dykema litigators successfully defended a wrongful death action brought by Gary Weinstein, whose wife and two sons were killed when a car driven by Thomas Wellinger crashed into Judy Weinstein's car. Wellinger, who was a sales executive for UGS, was driving with a blood alcohol level in excess of the legal limit.

Weinstein sued UGS, alleging the company knew Wellinger was intoxicated when he left work and had been showing signs of alcoholism for months before the accident. Weinstein further claimed that Wellinger was on his way to a doctor's appointment at the direction of his boss to discuss his alcoholism, and that he was in the course and scope of his employment at the time of the crash, which should make UGS liable for failing to supervise him and also vicariously liable for Wellinger's negligent acts. The Dykema team successfully argued that UGS was not negligent in supervising Wellinger, because there was no evidence that he was visibly intoxicated on UGS's premises on the day of the accident, UGS did not direct him to attend the medical appointment, and there was no evidence to indicate precisely where Wellinger was traveling to at the time of the accident.

These tragic facts could have resulted in a huge jury verdict against the employer if the jury were to have been convinced that UGS was in any way negligent in supervising Wellinger.

Lessons Learned

What is an employer to do if it suspects that an employee has a drinking or substance abuse problem? If there is no direct evidence of the employee being under the influence at work, the employer can suggest counseling or, where the employer has such a program, refer the employee to an employee assistance program. Where the employer believes that the person is under the influence on the job, it can send the employee for testing. If it is a union employee or a public sector employee, the issues may be more complex and may require interpretation of a union contract or further legal advice on searches and seizures.

Even if the employee agrees to go for testing, if the employer believes the person is under the influence, the employer should either send the person in a taxi or have another employee drive the suspected employee for testing and then home in the suspected employee's car, while another employee follows to pick up the driving employee. If the suspected employee refuses testing, the employer may be able
to terminate the person's employment immediately.

The Weinstein case presented a more complex factual setting. In Weinstein, although Wellinger may have had performance issues, there was no direct evidence that the employer had any knowledge of a drinking problem. If there had been such evidence, or if there were testimony regarding his potential intoxication at the time he left work, the verdict against the employer could have been substantial. Vigilance by the employer and the employer's representatives is critical. Where there is even a suspicion that an employee may have been drinking, the employer should not let the employee drive his or her own vehicle, but as discussed above, pay for a taxi or have another employee drive the person home. The employer should use common sense and caution in dealing with potential substance
abuse issues.

If you have any questions or need further information, please contact Joseph A. Ritok, the author of this alert, at 313-568-6846, or your Dykema relationship attorney.

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