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Alcohol Breath Analyzer Tests in the Employment Context

posted on Wed, Sep 16 2015 2:15 pm by The Network for Public Health Law

A requestor in Georgia contacted the Network for information on the legality of refusing a breath analyzer (commonly referred to by the brand name Breathalyzer) test for alcohol when asked to submit to one. Breath analyzers do not directly measure blood alcohol content or concentration, but instead estimate blood alcohol by measuring the amount of alcohol on the breath. Such tests are used in a variety of contexts.

Generally, a person cannot be forced to take a breath analyzer test against his or her will. However, in some circumstances, a person may be punished for failing to submit to such a test. This is particularly true in the contexts of driving and employment. Regarding driving, Georgia law includes an “implied consent” provision, which provides that any person operating a motor vehicle within the state is deemed to have given permission to submit to “tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug…” This means that when arrested or after involvement in a traffic accident resulting in serious injuries or death, and if a police officer has probable cause to suspect an individual has violated the law by driving under the influence of alcohol or other drugs, Georgia law requires an individual to submit to a breath analyzer test or risk both adverse action against that individual’s driver’s license and potentially having the refusal used as evidence against him or her in a court of law.

In the employment context, the legality of refusing a requested breath analyzer test or other drug test depends on the circumstances and employment setting. For private employers – that is, employers that are not the government – Georgia law permits, and even incentivizes, such tests prior to employment, upon reasonable suspicion of substance use, when determining fitness-for-duty, after workplace accidents, or at random. Because Georgia is an “at-will employment” state, an employer may terminate an employee for any non-discriminatory reason or for no reason at all. Thus, in general, an employer may fire an employee for refusing to take a mandated breath analyzer test. Moreover, if the test is requested after a workplace accident, refusing to submit to the test will create a presumption that the accident was caused by substance use, thereby precluding workers’ compensation claims. Refusing such a test may also be grounds for denying unemployment benefits.

For public employers – that is, federal, state, and local governments – an individual’s Fourth Amendment protections apply to substance use tests such as breath analyzer tests. Therefore, a public employer generally may only require substance use tests where there is a reasonable suspicion that a specific individual is using such substances or there are special circumstances, such as employees in safety-sensitive positions. Moreover, a public employer generally may not condition employment on the voluntary consent to a substance use test if that testing would otherwise be considered unreasonable.

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