A federal appeals court has partially reinstated a wrongful discharge case filed by a disabled driver who was fired after failing a breathalyzer test because there was a dispute over whether he was eligible to drive anyway, in a divided opinion.

Steven O’Brien, a driver for Salt Lake City, Utah-based R.C. Willey Home Furnishings, had been placed on light duty because of an injury when he was randomly selected to take an alcohol test, according to court papers in Steven O’Brien vs. R.C. Willey Home Furnishings.

Mr. O’Brien, who acknowledged he had been drinking heavily the night before but did not appear to have anything to drink that morning, and did not appear to be intoxicated or impaired, was suspended and then terminated in 2013, according to the court papers.

He filed suit in U.S. District Court in Las Vegas on charges including violation of a state statute making it unlawful for an employer to dismiss an employee “for the lawful use…of any product” outside the employee’s premises during nonworking hours.

He also charged discrimination and retaliation under the Americans with Disabilities Act. The court granted R.C. Willey summary judgment dismissing the case on all charges.

On appeal, an appeals court panel reinstated Mr. O’Brien’s state statute charge, in a 2-1 ruling. “Neither party disputes that R.C. Willey discharged O’Brien because he engaged in the lawful use of alcohol outside R.C. Willey’s premises during his nonworking hours,” said Friday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Steven O’Brien v. R.C. Willey Home Furnishings.

The ruling said, however, “Specifically, there is a genuine dispute of material fact regarding whether O’Brien was arguably available to drive on September 25, 2013, given that he was required to work at pay rate substantially below what he was paid as a commercial driver, given that he had been placed on light duty, was required to work at a pay rate substantially below what he was paid as a commercial driver, prescribed narcotic and opioid medications, and was medically restricted from sitting for longer than he could tolerate,” said the ruling.

“Moreover, if O’Brien was performing only a light duty position, was not available to drive, there is a genuine dispute as to whether his alcohol use adversely affected the safety of other employees because a reasonable jury could conclude that managing paperwork and handling delivery calls, even while intoxicated, did not pose a safety risk to other employees,” said the majority opinion.

The ruling affirmed the district court’s summary judgment in favor of R.C. Willey on Mr. O’Brien’s ADA claims.

The dissenting opinion said it disagreed with the dismissal of Mr. O’Brien’s ADA charges. “If O’Brien could not have been dispatched to operate a commercial vehicle, then R.C. Willey’s administration of the breathalyzer test was likely inconsistent with federal law,” which provides that drivers could only be tested for alcohol “while the driver is performing safety-sensitive functions.”

“A jury could reasonably conclude that, under the circumstances, testing O’Brien and then firing him for failing the breathalyzer test was a pretext for an ulterior motive,” the dissent said.

The case was remanded for further proceedings.

BNSF Railway Co. has coverage under its Old Republic Insurance Co. policy for a $1.475 million judgment entered against an employee who hit another vehicle while driving a company-owned car while drunk, said the Missouri Supreme Court in a recent unanimous en banc opinion that overturns a lower court ruling.