The story of a famous sports figure found allegedly driving impaired has received recent widespread media coverage. A first time arrest for OWI would not normally result in such a high level of attention, except that the person is a celebrity in a sport known for personal discipline and decorum.
The story evokes a series of emotions in the reader – they range from embarrassment for the individual, to concern about the health of the individual, to uncertainty as to whether the person is a hazard to others when they drive.
In Wisconsin, employers face these same questions and more when presented with a situation where one of their employees has been arrested for OWI. If you find yourself dealing with this situation, here are some things to consider:
- An arrest is different than a conviction. In Wisconsin, employers cannot take adverse employment action against an employee based upon an arrest. The charges could be dropped and/or may take some time to work their way through the court system. Take special care with any unrelated employment actions that might be taken after the arrest (discipline for attendance, quality of work, etc.) to ensure that those actions are clearly related to factual work related matters so that they are not seen by the employee as retaliation for the arrest.
- The arrest or conviction may be irrelevant if the employee does not drive for business purposes. It is important to ensure that job descriptions accurately state what the physical requirements of the position are, including whether the position requires driving as an essential function. If the position does not require having a driver’s license, or the position does not require motor vehicle operation at the worksite or on the road, or driving is a rare and unusual occurrence and others in the company could perform that function, the arrest may not impact the employee’s ability to do their job.
- If the employee does drive for business purposes, but the arrest occurred off of work time, the employer must investigate before taking action. What was the impairing substance? Alcohol? Illegal drugs? Legal drugs? What does the employee have to say about what happened? If your employee has a Commercial Driver’s License (CDL) they may need to be relieved from driving (but not have their employment terminated) until such time as they are either convicted or the charges are dropped. Always seek the guidance of your employment law attorney as you investigate this situation and have them guide you as you consider any employment action prior to, and after any conviction.
So, what steps can you take to ensure you are prepared as well as possible for this unpleasant situation?
- Review your drug and alcohol policy. Do you have one? If you don’t have one, it is difficult for you to legally test your employees and take employment action for positive results or OWI convictions when an employee must drive for work purposes. If you don’t have a policy, consider implementing one and have it reviewed by your employment law attorney prior to implementation. Ensure that you explain the policy and distribute a copy to all of your employees. Decide if you are going to engage in pre-employment, for cause, post-accident, and /or random drug testing. If you are, make sure your policy appropriately states which of those you are engaging in and the consequences of a positive result.
- Ensure that you have a contract in place with a testing site in the event that you need to have an employee tested. This is not something that you can simply send an employee to the doctor to have done if you don’t already have a site under contract. Typically you would contract either with a clinic that specializes in occupational medicine, and/or a local hospital.
- Have an Employee Assistance Program in place. You can refer employees to your EAP for fitness assessments, AODA assessments, and general counseling. The EAP will be an excellent resource in this situation for both you and your employee and can guide you through options and best practices in the particular situation you are dealing with.
Dealing with a situation where an employee is suspected of, or has been convicted of, driving impaired is complicated. Gather as much information as you can to make an informed decision and when necessary, reach out to your trusted legal, insurance, and human resources advisors for assistance.
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