NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another discussion of credibility can be found in "REVIEW LETTER 2-2000 - MAY, 2000 -SUBSTANCE ABUSE TESTING":

"CREDIBILITY & EXPERT EVIDENCE

In general, if a person fails an alcohol breath test pursuant to an employer's policy or to Federal Regulations, and attributes such failure to something other than a prohibited consumption of alcohol, his statements should be scrutinized and closely questioned. For instance, a claimant might contend that he consumed a prescription or over the counter cough medicine containing alcohol. Such a claimant must be asked to identify the precise medicine, to state its alcohol content (indicated on the bottle), and to specify how much of it was consumed in the six to eight hour period prior to the breath test. Although it is tempting to dismiss such a claimant statement as incredible, strictly speaking its rebuttal requires expertise. The employer would ultimately need to provide expert evidence that the test result would not have been caused by the amount of cough medicine consumed.

Although the expert opinion of a qualified chemist is often necessary to rebut the specific denials heard from those accused of inappropriate alcohol or drug use, some general knowledge about the rate at which alcohol is metabolized may make it easier to distinguish credible explanations from unlikely and preposterous ones. According to the American Medical Association, an average sized person who consumes three or four units of alcohol within an hour or two, and then stops, will have a blood alcohol level which peaks three to four hours after he or she began drinking, at a level at or above the legal limit for driving in most states. The alcohol would not be completely eliminated from the body until six to eight hours after the drinking began. One "unit" of alcohol is defined as a small glass of wine, a glass of beer, or a shot of hard liquor.

In a recently argued case currently pending before the Appeal Board, the claimant, a commercial driver, failed a breathalyzer test administered at the end of his eight hour shift. Although the test indicated a low amount of blood alcohol, employer had a zero tolerance policy. Furthermore, the employer believed that any alcohol reading signified that the claimant had been drinking during his shift. Claimant was discharged. The claimant argued that he did not drink during his shift and that the test result could only have been caused by the drinking he did the night before. He stated he stopped drinking at 11:00 p.m. The employer produced an expert witness who testified that claimant's story was not possible. A positive reading at the end of his shift had to have come from alcohol he consumed during the previous six to eight hours.

SUMMARY

* Employers can legitimately demand that employees submit to drug and alcohol tests.

* Failing a test or refusing to submit to a test is misconduct.

* Common test methods:

alcohol - breathalyzer or blood test;

drugs - urinalysis or hair test

* Failing a pre-employment test can also be disqualifying.

* Common evidentiary problems:

claimant's denial of drug or alcohol use requires employer to demonstrate chain of custody

claimant's statement, although lacking credibility, must be rebutted by an expert."