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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19229
Experience:  Employment/Labor Law Litigation
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I was suspended do to my employer smelling alcohol on my breath,

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I was suspended do to my employer smelling alcohol on my breath, (I admitted gargling with it because of a broken off tooth). I was given a breatholizer three times and all three times it registered zero. After I was suspended it was determined that I was having seizures due to a new SSRI I started the day prior. I have a NYS doctor's script detailing the reaction. Does my employer have a right to terminate me? Also, I work at a Drug and alcohol clinic and went through 2 evaluations during suspension with the determination that treatment was not indicated.
Submitted: 5 years ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 5 years ago.
Thank you for using Just Answer. Between my law practice and other law related jobs, I have over 13 years experience. I look forward to assisting you.

If you don't have an employment contract specifically stating that you can only be terminated for cause, your employer always has the right to fire you. They don't need a good or even accurate reason in an "at will" employment situation.

Now, that's only mostly true.

When an employer chooses to exercise a suspension or termination without a good reason AND there are factors like a disability in play, the employer can be accused of (if you wish) discriminating against you based on an existing or perceived disability.
Customer: replied 5 years ago.

My previous evaluations are exceptional, and have been for the past four and half years. This was an isolated incident. I actually have a contract with the state of New York. The agency in question is the fiscal agent that houses the coaltion/grant that I work out of. I am not sure if the Executive Director has the ability to fire me since I was accepted and hired by the state. Also, I would be o.k. with a brief probation period but not a reduction in pay. Advise.


Expert:  Allen M., Esq. replied 5 years ago.
Ok. As a state employee, which you didn't really indicate in your initial question, you have more protections. You are entitled to due process before they can make final any suspension or termination decisions. You can then argue the validity of their basis for suspension or termination.

You have to make that fight in office first because you have to exhaust your administrative rights before you can file any further claims.

If they do not meet you in the middle at least on what you'd be willing to accept, then you'll have to file a claim of lack of due process in your state's court system.
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Customer: replied 5 years ago.


It is a bit tricky because it is a federal and state grant position, so I am not really an employee by the state. I was however approved by them and signed a contract. Another side note; The day of the incident, I was impaired because of the new SSRI I was taking. I did request going to the wellness center but was allowed to walk home while having a grand mal seizure to an empty house no less. I am going in for my appt. at 2:30 and want to be armed with some legal advice.

Expert:  Allen M., Esq. replied 5 years ago.
Ok. Being impaired based on a medication can be used to your advantage where you can show that you did not blow positive on a Breathalyzer and that the medication, which was new to you, caused the issues.

If you were not hired by the state, but just approved, then my previous answer remains valid. As an "at will" employee, you'd have to allege that they are really discriminating against a perceived disability here and not granting you a reasonable accommodation under the ADA. That's your only recourse. If the employer doesn't change their mind on their own, you'll have to file an EEOC complaint.