Use of Intoxicants and Drug TestingThis section discusses principles governing determinations on discharges resulting from intoxication or use of intoxicants, and drug testing. Show
A. Use of Intoxicants"Intoxicant" as used in this section means any alcoholic beverage or distilled spirit, and drugs or other substances summarized as opiates, opium derivatives, hallucinogenic substances (including marijuana), and depressants of the nervous system such as phenobarbital and amphetamines. When the employer alleges that the claimant used an intoxicant or was intoxicated and the claimant denies the allegation, it is necessary to gather facts to determine if the claimant indeed used intoxicants or was indeed intoxicated. The statement, "He was intoxicated," is a conclusion which may or may not be based on facts. If the facts do not support the conclusion that the claimant used intoxicants or was intoxicated, he or she would not be disqualified. Example - Evidence of Intoxication: The claimant was employed as cab driver. On the day he was discharged, he had returned to the employer's garage at the end of his shift and was observed by the head traffic superintendent as he checked in his cab. As a result of his observations, the superintendent reached the conclusion that the claimant had been drinking on the job, and immediately discharged the claimant. The claimant denied that he was intoxicated at the time in question. He said that he had donated a pint of blood to a blood bank two days earlier and that had left him in a weakened condition. He stated that he felt ill when he turned his cab in, and that may be why the superintendent believed that he had been drinking. The employer’s head traffic superintendent testified that when he saw the claimant checking in at the garage, the claimant was in a 'very staggering condition'; that he 'wobbled' in going from the time clock to the cashier; that in appearance he was 'red faced, kind of blurry'; that in the 12 years of his employment with the employer, the superintendent had 'probably handled 200 cases of drunkenness of drivers'; and that in his opinion the claimant was intoxicated. The employer also introduced a written statement from the doctor in charge of the blood bank at which the claimant had made his blood donation. This statement showed that the claimant was examined prior to his blood donation and was found to be normal, and set forth the doctor's opinion that the after effects of a blood donation in a normal person would not last longer than four or five hours. Other evidence produced by the employer showed that the claimant had at least once previously been terminated for drinking on the job. The evidence in this case overwhelmingly points to the conclusion that the claimant was under influence of intoxicants at the time he checked his cab in at the appellant's garage. Note that the employer in this case did not just give a conclusion that the claimant was intoxicated. Instead, the employer presented facts to support the conclusion that the claimant was intoxicated. It is possible that a claimant will be under medical treatment and give the appearance of being intoxicated. This can happen as a result of certain medical prescriptions and occasionally happens with a diabetic patient who has had improper insulin shots. Verification of the condition or the prescription of drugs generally may be obtained through the claimant's physician. Title 22, Section 1256 37 provides: (Except where intoxication is the result of an irresistible compulsion to use or consume intoxicants or an inability to abstain) . . . an employee's conduct constitutes misconduct due to intoxication or the use or consumption of intoxicants if . . . : (1) He or she is intoxicated at the time he or she reports to work or returns to work following a lunch or rest period or similar period. As used in this subdivision, 'intoxicated' means under the influence of any intoxicant to the extent that a reasonable observer would conclude that there is a significant adverse effect upon an individual's normal ability, skill, or competence to perform the usual duties of the work assigned. (2) He or she uses or consumes any intoxicant other than alcohol during a lunch or rest period or similar break period. (3) He or she uses or consumes any intoxicant during working hours. (4) He or she uses or consumes alcohol during a lunch or rest period or similar break period after prior warning or notice of an employer rule that use or consumption of alcohol during such break periods will result in discharge. (5) He or she reports to work not intoxicated but with offensive physical effects due to the use or consumption of any intoxicant which adversely affects his or her ability or performance on the job, after receiving at least one warning or reprimand. "
B. Irresistible Compulsion to Use or Consume IntoxicantsIf the claimant is discharged because of the use of intoxicants, either on or off the job, the discharge would not be for misconduct if he or she has an irresistible compulsion to use or consume intoxicants. Title 22, Section 1256-37(c) provides: An employee's discharge is not for misconduct due to intoxication or the use or consumption of intoxicants if the intoxication-induced behavior was the product of an irresistible compulsion to use or consume intoxicants, or if the use or consumption of intoxicants was permitted or condoned by the employer. An irresistible compulsion to use or consume intoxicants is regarded as an uncontrollable illness rather than a voluntary act on the part of the claimant. If the claimant suffers from such compulsion, then the discharge is not for misconduct. Example - Irresistible Compulsion to Use Intoxicants: In Jacobs v. CUIAB (Third Appellate District, 1972), the claimant had been employed for 12 years as a ramp serviceman for an airline company. Because he suffered from alcoholism, it had been necessary on several occasions to send him home from work because of his condition. After warnings for reckless driving and an accident while driving on the ramp, he was also suspended from driving company vehicles. He was ultimately discharged because of chronic absenteeism stemming from intoxication due to alcoholism. In holding the disqualification under Section 1256 did not apply because wilfulness of the intoxication had not been shown, the Court said: Measured by the volitional test established under Section 1256, the findings of the Appeals Board do not support petitioner's disqualification. The agency should have inquired and found whether he had the capacity to abstain from drinking which adversely affected his work. If his intoxication-induced behavior was the product of an irresistible compulsion to drink, his behavior was neither wilful nor wanton . . . If he had the ability to abstain from intoxication-caused work lapses, his actions were wilful, evoking the disqualification for misconduct.
C. Drug TestingMore and more employers have resorted to drug testing as a condition for continued employment. A claimant might refuse to take the drug test, claiming it was an invasion of his or her privacy, or might test positive and be discharged. The Fourth Amendment to the U.S. Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article 1, Section 1 of the California Constitution provides: All people are by nature free and independent, and have certain inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness, and privacy. On this issue of drug testing, the Board, in P-B-454 (1987), stated: What becomes clear . . . is that there is no settled law on the issue, especially with regard to an unemployment insurance context. However, these cases are indicative of how courts have balanced the competing interests involved between legitimate employer concerns and employee rights. Notwithstanding the lack of clear judicial guidance, there does appear to be emerging from the courts that have examined the issue agreements on some things. A urinalysis or blood test is a search and therefore subject to the constraints imposed on the states by the Fourth and Fourteenth Amendments to the Federal Constitution . Both the State Constitution (Article 1, Section 1) and the Federal Constitution (through court interpretations) recognize a person's right to privacy. Thus, a drug test, using urine or blood samples, is a search. It is subject to the constraint of the Fourth Amendment in that the search by a public employer is not permissible without "probable cause." The employee's right to privacy is protected by the California Constitution and the Federal Constitution (through court interpretations) from both public and private employers. In resolving issues involving drug tests, it is necessary to balance the competing interests between the employer's legitimate concerns and the employee's rights to privacy.
Which of the following is true regarding contracts entered into by an intoxicated person?The intoxicated person must be returned to the condition he or she was in at the time the contract was entered into, but that is not true for any other party.
When can an intoxicated person ratify a contract?After becoming sober, a person can ratify a contract that she or he formed while intoxicated, thereby becoming fully liable for it. If a court declared a person to be mentally incompetent and has appointed a legal guardian, any contract made by that person is void form the outset.
Which of the following lacks contractual capacity to enter into a contract?The law recognizes three categories of individuals who lack the capacity to contract: minors, individuals with psychological disabilities, and intoxicated persons. If anyone from these categories enters into a contract, the agreement might be considered "voidable" by them.
When a person lacks capacity generally those contracts are?If any person that lacks capacity enters a contract, the contract is voidable by that person. A voidable contract is one that can either be allowed to continue as intended or can be terminated.
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