Alcohol consumption at work

Alcohol consumption in the workplace

Concerning alcohol consumption, the jurisprudence of the Second Chamber of the Supreme Court of Justice distinguishes between the worker who occasionally consumes alcohol and the one who has a dependency on it.

More significant effects are derived from the second condition in health, work performance, absenteeism, and even the work environment. For this reason, it is necessary to provide different treatments to the person who has this condition.

It is important to clarify that alcoholism and drunkenness are not analogous situations. The first refers to a disease that, although it is possible to control, has no cure; and is characterized by a set of clinical signs. This occurs as a result of excessive alcohol consumption, habitually and uncontrollably. That is to say, it is a disease that entails the excessive need for alcohol intake, which generates tolerance to drinking, and later, psychological and even physical dependence. On the other hand, drunkenness is a momentary disturbance of the mind and will, this is a consequence of ingesting too much alcoholic beverage. That is a transitory state in which the brain activity of the individual and the mental and motor functions of the body are altered or impaired by the action of alcohol, producing thoughtless behavior. (Resolution 2021-336 of the Second Chamber of the Supreme Court of Justice at 11:55 a.m. on February 19, 2021).

Regarding the occasional consumption of alcohol in the workplace, subparagraph c) of article 72 of the Labor Code establishes that it is prohibited for workers to: “Work while intoxicated or under any other analogous condition”.

Under the norm mentioned above, article 81 of the Labor Code determines the faults that may be cause for dismissal without employer responsibility. Specifically, subparagraph i) indicates: “When the worker, after the employer warns him once, incurs the grounds provided for in subsections a), b), c), d) and e) of article 72”.

Therefore, to apply a dismissal without employer liability for being under the influence of alcohol during the working day, a prior sanction is required for said cause before proceeding with the maximum sanction provided for by the employment law.

However, it is essential to indicate that the preceding does not exclude the possibility of being fired without employer responsibility if, while under the influence of alcohol, an offense of such magnitude is incurred that it can be considered a severe offense, following the provisions of subsection L of article 81 of the Labor Code. An example of this would be exposing the life or integrity of the workplace personnel by operating a vehicle or heavy machinery under the influence of alcohol and causing an accident.

On the other hand, since it is a situation of alcoholism, due to the effects that this condition has on the person, a different vision is required from the previous one since alcoholism, like any other health condition, needs to be attended by professionals.

Although people who suffer from alcoholism tend to be absent from work or come to work under the influence of alcohol, since it is an illness, the employer is obliged to give the worker the opportunity to seek professional help that allows him to improve and control your situation.

In this sense, the Second Chamber of the Supreme Court of Justice has indicated:

This Chamber is not unaware that people who suffer from alcoholism or drug dependence must be treated in a particular way. In this regard, sentence number 242, of 9:55 a.m. on March 26, 2008, referring to alcoholism, said: "The issue of drunkenness at work, as a just cause for dismissal, has deserved significant treatment by part of this Chamber, particularly from judgment No. 182, of 10:20 a.m. on March 23, 2001. […] …in this case, it has been said that because it is a disease similar to any other that can affect a worker's health, the employer's policy should not be sanctioning but rather aimed at pressuring the worker to seek and obtain help. The employer cannot be imposed a burden of such magnitude, but only that of providing an opportunity to the affected person, who, if he does not take advantage of it and continues to cause problems, may well be fired. […] Under these circumstances and given the nature of the delicate functions to which he was assigned, it is not possible to demand from the employer more than to have given him the opportunity to receive the necessary help for his rehabilitation. That management had already been attempted by the defendant Municipality, almost from the moment the actor entered to carry out his services, referring him to the respective center to treat that dependency. However, it is evident that the actor wasted it and continued to incur in the consumption of liquor, a clearly inconvenient situation in an official destined precisely for order and citizen security. This situation authorized, by itself, the dismissal" – the bold type is not in the original-…From the extracts of the partially transcribed sentences, which were also cited by the appeal body, it can be concluded that the employer has an obligation to give the employee with alcohol problems an opportunity to rehabilitate; however, if the worker does not take advantage of it, the employer cannot be required to keep him in his functions (Resolution 2019-457 of the Second Chamber of the Supreme Court of Justice of 11:00 a.m. on April 3, 2019).

Therefore, in the event of a breach of the employment contract as a result of a situation of alcoholism, it is important to document the fault and establish a dialogue with the worker to motivate him to seek professional help, that is, offer him the opportunity to obtain help at a rehabilitation center. Once the above has been done, if the collaborator returns to work under the influence of alcohol, the dismissal could proceed without employer responsibility.

It is essential to mention that although the employer must grant the worker suffering from alcoholism the possibility of rehabilitating himself, it is also the worker's responsibility to inform the employer about his condition.

In this regard, the Second Chamber of the Supreme Court of Justice has stated:

On this subject, all the witnesses -even those provided by the same plaintiff-, assured that they did not know about the alcoholism disease alleged by the plaintiff. Similarly, the plaintiff himself assured that he drank alcohol after leaving work, so it is also not possible that the company knew of the situation that he narrates. Therefore, this Chamber considers that it is not enough that in the initial libel, the claimant asserted that he had an alcoholism problem to consider this situation true since the confession must be assessed only in what harms him and not in what favors him. Thus, as the petitioner did not comply with his duty to reliably verify that he had communicated his alcoholism problem to the accused party, the employer was not required to offer him the opportunity to rehabilitate before terminating him (Resolution 2021-336 of the Second Chamber of the Supreme Court of Justice at 11:55 a.m. on February 19, 2021).

The same treatment is given to absences from the workplace since the fact that the employer is aware of the worker's condition does not exempt the worker from justifying his absences and proving by appropriate means the objective and reasonable condition for which he could not come into work.

The IAFA documents provided to the proceedings do not constitute a valid means by which a treating physician has established that the plaintiff's ailments warranted his incapacity. It is necessary to add that the care received at the said institute was for short periods of time (on July 18 from 1:15 p.m. to 3:30 p.m.; on July 19 from 7:00 a.m. to 11:00 a.m.; and on July 20 from 2:00 p.m. to 3:10 p.m.), without being unable to work when leaving said consultations. As mentioned, it was the worker's obligation to inform the employer immediately of the reason for his absence, which must be based on certain facts that prevent him, without a doubt, from fulfilling his duties, having to provide a medical opinion certifying his inability to work, a circumstance that is not appreciated in this case. Although it is clear that the company was unaware of the actor's alcoholism and that the dismissal was justified because the actor had been unjustifiably absent for 3 consecutive days, it is worth adding that this Court in ruling No. 2017-000868 of the 8:35 p.m. on June 28, 2017, indicated: "It is important to note that, although the absences are due to a problem of alcoholism or drug addiction, this does not exempt the worker from the obligation to submit to the employer, duly and promptly, the justification of each one at the time in which they would have been empowered to do so (in this same sense, the votes of this Chamber can be consulted numbers 2014-000167 of 9:50 a.m. on February 19, 2014, and 2017-000047 of 10:20 p.m. on January 18, 2017). For these reasons, it is considered that the sanction imposed was justified by having demonstrated the faults, which rules out that in the actions of the defendant, there was a lack of proportionality or haste in its application. In accordance with the foregoing, it is not possible to revoke what was ruled in the preceding instance in this regard. (Resolution 2021-1775 of the Second Chamber of the Supreme Court of Justice at 11:30 a.m. on August 4, 2021).

In short, even though the worker who suffers from alcoholism deserves to be given the opportunity to rehabilitate himself and be attended by professionals in the field, this does not exempt him from communicating his situation to the employer and adequately justifying his absences.

At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.


About the Autor

Jairo José  Cerdas

Jairo José Cerdas

Email: [email protected]
Phones +506 2289-5052 | +506 2282-2164 | +506 2289-5275
View author's full profile


Developed by Globalode