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This came up during a discussion I was having with a friend who works as head of HR for a medium sized organization, about 600 employees in total. Recently they had to let someone go for poor performance. There was also a suspicion that the employee was showing up to work still intoxicated. Rather than documenting the poor performance and work through the performance improvement steps, they opted to breathalyze the employee when he arrived for work. The employee failed the test, blowing just under the legal driving limit, and was promptly dismissed.

Obviously, this person deserved to be fired, and in America most states have "at-will" employment, meaning you can fire someone for pretty much whatever reason you want, provided it is not an illegal reason. But this got us wondering – could an employer ever bar an employee from consuming alcohol outside work? Would this sort of thing be justifiable? I know several public sectors have random screenings, e.g. for drugs, alcohol and even cheek swabs for tobacco to catch people lying related to their health insurance.

Could an employer institute a rule that would forbid me from drinking outside of work?

Related but very different

  • Comments are not for extended discussion; this conversation has been moved to chat. Lots of interest in discussion on this topic but that's better fit for the chat room - comments are intended for requests for clarification. – enderland Mar 14 '17 at 16:44
  • This appears to be a hypothetical discussion, which is listed as off-topic in workplace.stackexchange.com/help/dont-ask. – mcknz Mar 15 '17 at 16:09
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The current answers cover most things; my addition is that some companies do bar their people from drinking when representing the company. So, for instance, they may be out at a conference for a few days or overseas onsite with a client and company rules are they cannot drink at all for the duration.

Another instance (similar) is when overseas in a Muslim country, one company I know of forbids their people to drink, although I believe there are facilities for them to do so in those countries.

The logic behind the first is there is less chance of them disgracing the company, and in the second it can cause problems which are better avoided.

If you've worked in the third world and seen how seemingly mature and even elderly consultants carry on first hand when they're drunk, you would understand better. Getting them drunk is also used by criminals and rivals as a means to extract assets or information.

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    But if you're overseas for work reasons, I'd consider you to be "at work". – Shufflepants Mar 13 '17 at 14:40
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    @Shufflepants That wouldn't really make sense for non-salaried employees, since they won't be on the clock for the entire duration of their trip. – Kyle Strand Mar 13 '17 at 15:36
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    @KyleStrand In my organization it's true, salaried or not. Our policy is something along the lines of "When on a business trip for {organization name} you are acting as an ambassador for the company; behavior at all times shall comply with rules set out for behavior on company time." – Myles Mar 13 '17 at 18:27
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    Worked overseas for a company that had pretty strict rules about our drinking while there—rules they ended up needed to make even stricter after a series of extremely embarrassing drunken episodes (all after I was there) that ended in an arrest. None of it was on company time per se, but that was almost besides the point. – KRyan Mar 13 '17 at 19:39
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    @KyleStrand It's not, simply as that. – Viezevingertjes Mar 16 '17 at 14:48
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Some professions are prohibited from imbibing within a certain number of hours of their shifts - pilots are one. Even if they're not on the clock, they can't have a glass of wine and then go to work 4 hours later.

Things can get even muddier with salaried/exempt positions with an on-call component. If you are on-call and need to be prepared to perform work duties on a moment's notice, or even go into the office, it's in your best interest to keep consumption to a minimum or not at all during your on-call rotation. Even if you aren't technically on-call, someone could conceivably call you (I've been called while on holiday).

The real difficulty is in proving that you've violated such a rule if no one interacts with you when you're sipping your wine/feeling the effects of them.

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    There is no legal prohibition on doctors drinking even while on duty. There was a ballot initiative in 2005 in California but it failed. Most hospitals have a policy that forbids it but there is no legal prohibition, so if you are in private practice there is nothing stopping you except professionalism and potential claims for malpractice. – IDrinkandIKnowThings Mar 13 '17 at 15:55
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    On-call supposes a payment, I do not agree you cannot drink if not on-call. – Rui F Ribeiro Mar 13 '17 at 18:12
  • Does anyone know if people who handle highly classified material might be prohibited from becoming intoxicated at any time? Seems like a logical policy considering their intoxication could be used by criminals or foreign agents to compromise them, for example via social engineering (emails, for example). – Viziionary Mar 13 '17 at 21:50
  • @RuiFRibeiro many (possibly even most) IT employees in the US who are in an on-call rotation are salaried/exempt and receive no additional compensation for being on pager duty. – alroc Mar 14 '17 at 0:41
  • @alroc My understanding is that they're paid overtime (or a rate above overtime) for the hours they work when called in, as opposed to a smaller amount just for being on rotation. – Nic Hartley Mar 14 '17 at 4:07
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A company can implement any policy that is not forbidden by law, and there is nothing forbidding that type of policy in any state that I am aware of.

In fact my sister in law worked as a live in social worker at a juvenile rehab facility. She had to sign an agreement that she agreed to abstain from any alcohol and non prescription drug use while employed for the facility. She was expected to observe the same rules that the patients were in that regard.

Many companies I have worked for have had a 0 tolerance policy for alcohol in your system. If you were tested and found to have any alcohol in your system while on duty, you could be subject to immediate termination.

FMLA does allow for taking a break to allow for rehabilitation, as noted on the site:

Treatment for substance abuse may be a serious health condition for purposes of FMLA if the applicable conditions defining a serious health condition set forth in Regulations, 29 CFR Part 825.114 are met. FMLA leave, however, may only be taken for treatment for substance abuse that is provided by a health care provider or by a provider of health care services on referral by a health care provider. (See section 825.118.) On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave. (See section 825.114(d).)

Treatment for substance abuse, however, does not necessarily prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised the right to take FMLA leave for treatment. If, however, the employer has an established policy, applied in a nondiscriminatory manner that has been communicated to all employees, that provides that under certain circumstances, including enrolling in a substance abuse program, an employee may be terminated for substance abuse, pursuant to that policy an employee may be terminated whether or not the employee is presently taking FMLA leave.

Some states may provide more protections than others so it is best to check with your local laws on such policies.

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I am not a lawyer, and this question would probably be more suitable for Law.SE as your question is more of a legal issue, but I will tell you what I know.

The principle behind "At-Will" employment is that either you or your employer can terminate the relationship at any time, for any reason, with or without cause, and with or without notice. In practice, however, the world operates very differently.

In the specific case of alcohol consumption that is on your own time, in the absence of a policy forbidding you from doing so, would be a legally murky case for firing you. It all depends on the circumstances and the type of work you do.


TL;DR explanation...

First off, here are the easy things that a company can't fire you for:

  • Federal law prohibits discrimination against the usual issues of race, gender, religion, national origin, age, sexual identity, disability, genetic information, or military service. Also, there are federal statutes that extend protections to other activities, such as whistleblowing, or a leave of absence due to the the Family Medical Leave Act (FMLA) for example.
  • State laws offer many protections above and beyond federal laws. These vary from state to state. You have to check with yours specifically, but many of those protections govern things like moral/ethical objections to certain job duties, various lifestyle choices, etc. Some states even have statutes regarding alcohol and tobacco use specifically.
  • Companies cannot fire you for your refusal to violate the law, work overtime, work "off the clock", or endure threats or harassment that would be considered illegal for them to do.
  • If you're a government employee, have an employment contract, work for some companies that do federal contracts, or are a member of a labor union, you have some more protections there. Government employees in particular cannot be fired for exercising their Constitutional rights, which a private company could fire you for. This is because the Constitution limits how the government may act, but does not limit how private citizens may act.

Now, here are things a company definitely can without question fire you for:

  • Criminal activities, whether or not those activities were connected with your employment. This generally excludes civil offenses, such as judgements in private lawsuits, traffic vilations, etc -- unless your job depends on these things.
  • Any violation of written company policies, including your own job description. Obviously, if your job description is to do X, you can be fired for not doing X. But most companies also have ethics policies (which can be broad in scope), dress codes, computer use policies, non-disclosure policies, and yes, even tobacco and alcohol use policies that you can be fired for. You generally have to agree to these before you begin working for the company, and usually you sign a document to that effect (though not always). Companies have a lot of freedom to implement whatever policies they choose (so long as they don't violate the legal protections above).
  • Anything which brings public shame or embarrassment upon the company. Employees can and have been fired over negative comments about their employer on social media for example. You could also be fired for calling into question the company's legitimacy or expertise in their industry. For example, a financial counselor can be fired if they mishandle their own finances, a social worker could be fired for not paying child support, a delivery driver for having unpaid traffic tickets, etc. Lack of professionalism would fall into this category as well.
  • Being unfit for the job. If you are or become physically or mentally unable to perform your job duties then you can be fired. This could qualify as a disability, but the law says they only have to make reasonable accommodations for you that don't impose an undue burden on them. The terms "undue burden" and "reasonable accommodation" have legal definitions.

I'm sure there are things I haven't thought of that could be placed on both lists, but most everything else I haven't mentioned here is a legal gray area. Technically, the law says they can fire you without cause, but practically speaking, you also have a right to sue your employer and make up whatever argument you want. Due to that legal uncertainty, this means in practice, companies usually build an internal case against you so they can fire you with cause. If at-will employment were to be interpreted as loosely as some of the other answers here suggest, companies would rarely bother with write-ups, employment evaluations, and documented disciplinary processes. A with-cause dismissal is very difficult for you to defend, and lawyers are expensive.

There's also the issue of unemployment compensation. A without-cause dismissal usually entitles you to an unemployment check which the company has to pay for (the specifics of which also vary from state to state). A with-cause dismissal usually doesn't.

  • "TL;DR explanation"—huh? This post doesn't contain a "tl;dr" (though it would benefit from one). Still, +1 for explaining the reality underlying the theoretical "at will" notion. – Wildcard Mar 14 '17 at 2:32
  • @Wildcard Is there a way to add one? I didn't know SE had that. – Wes Sayeed Mar 14 '17 at 2:49
  • Not specially marked as such. But a "tl;dr" for this post would be about one sentence (in my opinion). Usually you'd put that in a single line at the top of the post. – Wildcard Mar 14 '17 at 3:11
  • @wildcard I think that it was intended to mean "this explanation is too long; didn't read", in a joking manner. – Nic Hartley Mar 14 '17 at 4:10
  • May be worth pointing out that a flat-out alcohol ban probably would run afoul of some of those federal non-discrimination rules-- specifically a lack of exemption for sacramental wine would run you afoul of the Catholic Church, – the dark wanderer Mar 14 '17 at 6:22
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No, they cannot (Mostly). What happens outside of work, stays outside of work.

The key thing to check, is whether this consumption would impact your ability to work (According to the workplaces guidelines, some places may enforce a zero alcohol in bloodstream policy, others it would be similar to the driving limit). The biggest problem with alcohol in this case, is that it stays in your system for hours after consumption. If you have consumed alcohol and it causes a belated effect on you e.g. you're hungover or your blood alcohol level is too high for the job you are doing, then there could be reason to fire you.

They cannot force you, when you are not on the clock to behave a particular way and as long as you turn up to work in a ready state, then they have no business interfering.

Some exceptions that could happen though:

  • You're on call, which is still considered to be working, they can state if you can or cannot consume alcohol
  • You're in a very specialised career that requires your 100% commitment, e.g competitive sports, army. That tends to get to a more tricky area, that you would need to check with your employer to see what is and is not allowed

There could be others, but in the vast majority, what you do at home stays at home, as long as it doesn't follow you to work.

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    Can you clarify what you mean by "cannot," and where you're talking about? In the US at least, there's nothing to legally prevent an employer making a rule against employees drinking off the clock, or firing employees who drink off the clock. – MissMonicaE Mar 13 '17 at 14:47
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    Do you have an example of that? Would love to see that being enforced and also being held up in a court of law. Next you'll be stating that McDonalds can enforce that all employees can only consume food purchased from their enterprise while not working. When you're off the clock and things you are doing will not impact your time on the clock, an enterprise has no say in how you go about your life. – Draken Mar 13 '17 at 14:52
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    @Draken IANAL! In at will employment I think the company can make some crazy rules. Does not mean they will be able to find employees. – paparazzo Mar 13 '17 at 15:27
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    @Draken in the US, things are generally legal unless they're specifically forbidden (and it varies by state--I think this would actually be illegal in California, but I'm not sure). Legally, you can be fired for any reason as long as it's not discriminatory in a pretty specific sense. There are some exceptions where unions, contracts, and civil service are concerned, but that's the general rule for corporate jobs. It would definitely be a jerk move, so almost no one does it, but the legal question isn't "has this been held up in court?" but "has this been specifically forbidden?" – MissMonicaE Mar 13 '17 at 15:46
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    @DavidSchwartz The question is "Can my company prevent me from consuming alcohol outside of work?" It has nothing to do with at will employment, the company can decide to fire you if you drink outside of work, or they could equally validly fire you because you do not drink outside of work, or any other unreasonable reason. However they cannot prevent you from drinking outside of work, all they can do is fire you and their power ends there. This is the right answer. They have no legal or other tool to prevent you from drinking outside of work. – Vality Mar 14 '17 at 0:51
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They cannot prevent you from drinking, of course, but they can forbid it.

I had a mate once who worked for a big US company based in Utah. It said in his contract that he was not allowed to drink alcohol, at any time, ever. He signed the contract, and worked for them for a long time. It just meant he and many of his colleagues did not drink alcohol if there were any US personnel around (business trips, socialising) but made up for it by drinking in private.

I never heard of them being tested. There was the (possibly apocryphal) story of an alcoholic who injected vodka into oranges so he could eat them at his desk to keep topped up during the day.

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