Cal. Code Regs. Tit. 22, §§ 1256-37

Current through Register 2024 Notice Reg. No. 50, December 13, 2024

Section 1256-37 - Discharge for Misconduct -Intoxication and Use of Intoxicants

(a) This section relates to discharges from the most recent work for misconduct due to intoxication or the use of intoxicants. Section 1256-30 of these regulations sets forth general principles also applicable under this section.

(b) Except as provided in subdivision (c) of this section, an employee's conduct constitutes misconduct due to intoxication or the use or consumption of intoxicants if any of the following occurs:

(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 break 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.

(c) 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 a total inability to abstain from the use or consumption of intoxicants, or if the use or consumption of intoxicants was permitted or condoned by the employer.

(d) For purposes of this section, "intoxicant" includes:

(1) Any alcoholic beverage or distilled spirit.

(2) Any drug or other substance included in Sections 11054, 11055, 11056, 11057, and 11058 of the California Health and Safety Code, when not medically prescribed by a licensed physician for medical treatment.

COMMENTS. This section generally relates to intoxication or the use of intoxicants on the job. However, if an employee's off-duty activities injure or tend to injure the employer's interest then the employee may be discharged for misconduct.

EXAMPLE 1. A, a janitor, was arrested for drunk driving while off duty. The employer discharged A.

A's off-duty intoxication did not relate to A's work performance and did not substantially injure or tend to injure the employer's interest. Therefore A's conduct did not constitute misconduct due to intoxication.

COMMENTS. Under subdivision (b), use or consumption of any intoxicant while on the job, or any intoxicant except alcohol during break periods at work, constitutes misconduct if in violation of an employer rule or in willful disregard of a standard of behavior which the employer has the right to expect. Reporting to work or returning to work after breaks intoxicated is misconduct. Prior reprimands or warnings or notice of an employer rule are necessary for alcohol use or consumption during work breaks to be misconduct, but are not necessary for other intoxicants where the use or consumption is illegal and the violation or breach is substantial.

This subdivision also recognizes the exception under subdivision (c) that in certain occupations, using or consuming intoxicants on the job may be permitted or condoned. For instance, it is common for a bartender to have a drink with his or her customers. However, if the use or consumption of intoxicants on the job is uncommon to the occupation, it is misconduct if the other conditions are met.

Paragraph (5) of subdivision (b) refers to circumstances where physical effects of the use or consumption of intoxicants affect the employee's performance of his or her duties on the job. For instance, the odor of liquor on an employee's breath would interfere with an employee's performance on a job which entails close contact with the public, such as a dental assistant, or salesclerk. Offensive physical effects due to the use of intoxicants may also interfere with an employee's ability to perform his or her duties.

EXAMPLE 2. B's job as a food checker entailed handling large sums of money and meeting the public constantly. On one occasion when B was not at B's post at the appointed hour, the acting manager went to the back of the store to look for B. The manager found B with bloodshot eyes, wrinkled clothes, liquor on B's breath, and a sleepy appearance. On prior occasions B had been warned that reporting to work late and in such condition would result in a discharge. The employer discharged B.

B had a duty to arrive at work in proper physical condition and ready to work. B's conduct was misconduct due to the use of intoxicants.

COMMENTS. Subdivision (c) recognizes that an employee's discharge is not for misconduct due to intoxication if the intoxication-induced behavior was the product of an irresistible compulsion to drink or use intoxicants

EXAMPLE 3. C was a ramp service person for an airline. C was discharged because of chronic absenteeism. C's absenteeism was caused by chronic intoxication which was ascribed to alcoholism.

Because an essential element of misconduct is the volitional "willful and wanton" test, C's intoxication-induced behavior was a product of an irresistible compulsion to drink and therefore C's behavior was neither willful nor wanton. C's acts did not constitute misconduct due to intoxication.

COMMENTS. This section recognizes that intoxication or the use or consumption of intoxicants includes not only alcoholic beverages but also drugs or controlled substances.

EXAMPLE 4. D was a taxi driver. On several occasions D's supervisor had observed that D acted as though D was under the influence of alcohol or drugs. D's supervisor confronted D and warned D that D must come to work able to perform D's duties effectively. D stated that D had taken a drug before coming to work to calm D's nerves. D was not addicted to the drug. When D again arrived at work apparently under the influence of an intoxicant, the employer discharged D.

D had a duty to arrive at work ready to perform D's duties effectively. The drug D took was not prescribed by a physician for medical treatment. D's conduct constituted misconduct due to intoxication.

Cal. Code Regs. Tit. 22, §§ 1256-37

1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).

Note: Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).