Seyfarth Synopsis: Does Pennsylvania’s public policy preclude a nuclear power plant from terminating an employee for being drunk on the job? “No,” the United States District Court for the Middle District of Pennsylvania ruled this October.

The employee, a long-time production foreman, failed a blood alcohol test in February 2018. In response, and pursuant to a federal regulation, the nuclear plant suspended the employee’s access to the facility for fourteen days. Before the suspension ended, the plant terminated him.

The employee sued. The employee argued, in pertinent part, that his termination violated an alleged Pennsylvania public policy to “allow[] employees with alcohol or drug-related issues to complete treatment for first offenses before being terminated.”

The Court disagreed. It recognized that Pennsylvania law permits common law wrongful discharge claims when an alleged termination “violate[s] a clear mandate of Pennsylvania public policy.” But, the court held, such a clear mandate has been recognized only in three limited circumstances: (1) when an employer fires an employee for refusing to commit a crime; (2) when an employer fires an employee for complying with a statutorily imposed duty; and (3) when a statute prohibits discharge.

Contrary to the plaintiff’s argument, the Court concluded that no statute or regulation required employers to forgive “first offenses,” or offer treatment in lieu of termination. The Court further concluded that, although Pennsylvania offers state employees the opportunity to participate in substance abuse programs after a first offense, this program did not evidence any “public policy” that applied to private employers. Accordingly, under the employment “at will” doctrine, the Court found that the nuclear plant could freely terminate the employee for failing a sobriety test.

The Court’s decision is a reminder that, while the employment “at will” doctrine is under threat, it’s not dead yet. Providing substance abuse counseling and treatment to employees who violate drug and alcohol policies may be good personnel management. But, all other things equal, nothing in Pennsylvania prohibits employers from simply terminating offenders.

That guidance, however, comes with a caveat: every employee has multiple protected characteristics (i.e., a sex, race, national origin, religion, etc.). If employers terminate some substance offenders, while referring others to treatment, plaintiffs’ attorneys may be able to assert discrimination claims based upon alleged disparate treatment. At the same time, some offenses may be worthy of termination, while others aren’t. An employer could draw a clear difference, for instance, between a forklift driver who comes to work at three times over the legal limit, and a secretary who tests positive for marijuana. But there are also many gray areas, which could raise factual questions in a discrimination case. To that end, employers who run drug testing programs should draft clear, written guidelines demarcating what kind of offenses they consider terminable, and what kind of offenses warrant treatment, or a lesser sanction.