January 15, 2009

Drunk at Work in Peru

Now that Robert Aurbach's compelling discussion of bankruptcy has concluded, we thought readers might enjoy a quick look at an issue that none of us can do anything about: drunken workers in Peru.

Peru's top court has ruled that workers cannot be fired simply for being drunk on the job. The case was brought by Pablo Cayo, a janitor for the city of Chorrillos, who was fired for being intoxicated at work.

The court determined that the firing was excessive: yes, Cayo was drunk, but as Justice Fernando Calle put it, "he did not offend or hurt anybody." In other words, he was a pleasant drunk.

Calle went on to say that the court would not revise its decision, despite complaints from the government.

What is most surprising about this decision is the implications for safety: not just Cayo's, but other employees and members of the public who might come into contact with the intoxicated worker. Cayo might not be much of a risk while pushing a broom, but surely his ability to perform the full range of his job duties safely is severely compromised by his intoxication.

Here in the States, active drug/alcohol use is not protected. Under OSHA's General Duty clause, employers are expected to take immediate action when a worker is intoxicated: they are required to eliminate the risk of harm to the employee and to others. (See a related Insider story here.) In most cases, this means sending the employee home - providing transportation if needed. (You do not - repeat, do not - allow an intoxicated employee to drive him or herself home!)

While recovering alcoholics/addicts are protected by the Americans with Disabilities Act, active drug/alcohol use is not considered a disability. Most employers would be within their rights to terminate any employee who is found to be intoxicated while at work. Under some circumstances, employers might be expected to guide the employee toward a treatment program, but in general we have zero tolerance for being drunk at work.

The high court in Peru appears to be breathing that thin Peruvian air. This is the kind of decision that drives managers crazy. As Celso Becerra, chief administrator for Chorrillos, put it: "We've fired four workers for showing up drunk, and two of them were drivers. How can we allow a drunk to work who might run somebody over?" Normally, I might say "Tell it to the judge." But in this case, they have to take their complaints somewhere else.



This reminds me of my family vacation to Austria in 2005.
There was a construction project across from our hotel. (they never tell you that in the brochure) Each day We watched the workers take their lunch break and drink beer with their meal. As a work comp attorney I joked regarding the affirmative defense available in any potential work injury claim. As I recall, we did not witness any injuries and the workers seemed to be in pleasant moods!
Different customs in different countries!

I knew there was a reason I liked Peru.

I believe that our politicians follow the Peruvian codes while working!


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This page contains a single entry by Jon Coppelman published on January 15, 2009 11:58 AM.

Bankruptcy and Workers' Compensation: A Silver-Plated Bullet was the previous entry in this blog.

Grace Under Pressure is the next entry in this blog.

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