My Employee Got a DUI: Do I Have to Fire Them?
An employee was arrested for driving under the influence over the weekend. It happened off the clock, off company property, with no company vehicle involved. Do you have to fire them?
The short answer is: it depends. Here is how to think through it.
There Is No Federal Law Requiring Termination for a DUI
No federal employment law requires an employer to terminate an employee simply because they were arrested for or convicted of a DUI. At-will employment means you can terminate for this reason in most cases, but you are not required to. And in some situations, terminating for a DUI could create more problems than it solves. For a broader look at how at-will employment affects your options as an employer, see At-Will Employment: What Small Business Owners Need to Know.
The Role Makes All the Difference
The most important factor in your analysis is what the employee does for you.
Driving is a core job function
If the employee drives as part of their job, like a delivery driver, a sales rep who uses a company vehicle, or a field technician who travels between job sites, a DUI conviction may make them unable to perform the essential functions of their role. If their license is suspended, they literally cannot do the job. Termination is defensible in this situation and often necessary. Timing can be tricky, however, as an employer should not take action for an arrest versus conviction.
Driving is not part of the job
If the employee works in an office, a warehouse, or any role where driving is not a function, the DUI has no direct nexus to their ability to perform their job. In this situation, termination is not required and may be harder to defend, particularly in states with off-duty conduct protections.
State Off-Duty Conduct Laws
Several states have laws protecting employees from discipline for lawful off-duty conduct. A DUI arrest (not yet a conviction) occupies ambiguous territory. Some states prohibit adverse action based solely on an arrest without a conviction.
Even in states without specific off-duty protections, proceeding directly from “employee was arrested” to “employee is terminated” without any investigation or process creates risk. An arrest is not a conviction. If you terminate for the arrest and the employee is later acquitted, you have a problem.
The ADA Consideration
If the employee has an alcohol use disorder, which is a recognized disability under the ADA, the analysis becomes more complex. The ADA does not protect employees who are currently using alcohol in violation of workplace policies or who cannot perform their job. But it does require employers to consider reasonable accommodations for employees with alcohol-related disabilities, including leave to attend treatment.
This does not mean you cannot hold an employee with an alcohol use disorder accountable for performance or conduct. It means you need to be careful about how the termination is stated and documented.
Your Drug and Alcohol Policy
Whether you can act depends significantly on what your written policy says. A policy that requires employees in safety-sensitive or driving roles to maintain a valid license and a clean driving record gives you a clear basis for action if a DUI results in license suspension. A policy that requires employees to disclose criminal charges that affect their ability to perform job duties creates a disclosure obligation.
If your policy is silent on off-duty DUIs, your response is essentially discretionary, which means it needs to be consistent and documented.
A Reasonable Process
Rather than terminating immediately upon learning of a DUI, consider:
• Determining whether the employee’s license is suspended and whether that affects their ability to perform their job
• Reviewing your drug and alcohol policy and what it requires
• If the role involves driving: exploring whether temporary reassignment to a non-driving role is feasible while the legal process plays out
• Consulting with HR or employment counsel before making a final decision
• Documenting your reasoning thoroughly regardless of the outcome
For guidance on how to handle the separation if termination is the outcome, see How to Conduct a Termination Meeting.
Get a Progressive Discipline Policy Template
A clear progressive discipline policy, including guidance on conduct issues and immediate termination offenses, gives you the framework you need to handle difficult situations like this consistently.
→ Progressive Discipline Policy Template — $35 | pragmatichrgroup.com
Editable Word document + PDF. Instant download. Created by a SHRM-SCP certified HR professional.
Questions about this or other HR topics? Visit pragmatichrgroup.com for more resources.
