Fired for failing breathalyzer from Inhaler?

Come to my house, we can test some alcohol..Or take alcohol tests

 

The reason you’re not finding it is because the urine test is sent into a lab therefore a MRO is needed.
The alcohol is done onsite and confirmed if needed. Call the person administering the test MRO if you want.

The op has no fight in this matter. What’s his argument going to be.. I have a prescription for my medicinal alcohol spray .I’m only a little drunk/impaired/pregnant

 

Sorry Mr Ridgeline.

What I posted is a fact and once I find it again I’ll present it.

For now give me the benefit of the doubt because I’m not one to just make things up. If I say something with certainty it’s because I already did my homework.

There’s somewhat of a hint of it from what I posted. Under 0.02 is not recognized by the fmcsa for their reasons I already posted and linked.
There’s wording on fmcsa when an employer can and cannot take action against the employee. If he got fired for under 0.02 he could most certainly sue for wrongful termination.

 

@Ridgeline

This is not as clearly written as another fmcsa example I read but covers it basically.

“
Consequences for Drivers With an Alcohol Concentration of 0.02 or Greater but Less Than 0.04

The policy must state that any driver who has an alcohol concentration of 0.02 or greater but less than 0.04 shall not perform or continue to perform safety-sensitive functions until 24 hours following the administration of the test (382.505).

No other action can be taken under FMCSA or DOT authority against the driver based solely on test results showing an alcohol concentration of less than 0.04. This does not prohibit the employer with authority independent of FMCSA regulations from taking any action otherwise consistent with the law (382.505(b)).

No action shall be taken under FMCSA or DOT authority against the driver based solely on test results showing an alcohol concentration of less than 0.02. Alcohol concentration results of less than 0.02 are considered negative for the purposes of this employer testing program. No employer may penalize a driver based on a test result of less than 0.02 alcohol concentration conducted under Federal requirements.”

https://www.fmcsa.dot.gov/regulatio...all be taken,of this employer testing program.

 

I don't see a reason to argue with you about any of it. You believe what you want. That is all I can say really, I think you're missing the point by a mile. You wanna fire people you have working for you "for no cause or reason" you do that. That isn't what happened in the OP's case, though, now is it? They provided a very specific reason - the breath test results. Did they know of a disability that he has? Don't know. He never did say. Was he ever diagnosed with a disability? I don't know that, either. Asthma can be a disability, though.

 

IMO, everyone posting a question where they get a "false test result" is trying out their alibi to explain away the test being accurate. If in doubt, I assume the results are accurate until proven otherwise. I think there is an epidemic of clueless people without enough common sense to pour P out of a boot even if the instructions were written on the sole and a lot of people with NO EXPERIENCE doing ANYTHING but living online wandering around society. There is a Competency Crisis just getting started and it's visible in every industry. Maybe all of the rescue moms that sheltered these people for their first 30 years in life will clean up their messes? I doubt it, but it's either that or space aliens fix this fuster cluck.

 

I get what you are saying but there is more to this than black and white employment and termination.

This is the key important point - "This does not prohibit an employer with authority independent of this part from taking any action otherwise consistent with the law."

This not only allows one to terminate the employment using a strict no-tolerance policy, it also removes the recourse by the driver to go after the company for wrongful termination. As I said, only one state has laws prohibiting firing or termination without prior notice and it isn't california.

The FMCSA has no authority to interfere with the employment between the two - employer and employee, unless it is something to do with the illegal or improper operation - telling a driver to keep two logs, or to alter their HOS or drive an unsafe vehicle. Termination based on complaints of improper operations has a different set of actual laws, not regulations that protect the driver, and allow the driver to sue the former/present employer.

Now, you can claim I am wrong, but there have been a few court cases (I will not cite) that were initiated by drivers who were fired for this exact scenario of the OP. The use of 382.505 in two of these cases left the question to the court of what the liability of the employer, and the judge ruled (dismissed) in the case that the liability of the company was non-existent by the judge because of that sentence. However, the liability of the testing facility was deemed justified to move the cases forward, which ended up having a judgment against the testing facility. These judgments included lost wages and punitive damages but not restoring employment.

 

I carry an albuterol inhaler almost everywhere, and use a nebulizer with the same as necessary because I have asthma. I don’t use it for sometimes months at a time, but like having it handy just in case. I’ve never heard the likes of popping a positive alcohol test over albuterol. And I have used it if necessary for the last 25 +/- years

 

I’m not sure if you’re understanding what I posted. Th op was fired for a 0,.2 and the employer was well within their rights to fire him.

If he recorded a 0.019 the employer better come up with a different reason for firing than the test results. It really isn’t rocket science if you insist on getting rid of someone.

 

An interesting experiment would be to get a blow test about 15-20 minutes after you used the inhaler.
Off the record, on your own time and dime, and just for scientific research, of course.

Or, maybe with your company in the loop all they way.
Do the test before you use it and get a zero result, then use it and re-test 15 minutes later to see what happens.