Substance abuse policies: legal guidelines

Substance abuse in the workplace costs employers billions of dollars annually in lost productivity, absenteeism, and theft, to say nothing of Workers’ Compensation, health insurance, and medical costs.

Creating a workable substance abuse policy is complicated by: the fact that states vary as to what they allow in the way of testing; the Americans with Disabilities Act (ADA), which affects how drug and alcohol addiction can be confronted; and legal proscriptions for acting on suspicions of actual workplace illegal drug and alcohol use.

1. Is it legal under the ADA to terminate an employee who is currently using illegal drugs?

Yes. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” protected by the ADA when an action is taken on the basis of their drug use.

2. Is testing for illegal drugs permissible under the ADA?

Yes. A test for illegal drugs is not considered a medical examination under the ADA. Employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit or authorize drug tests.

3. Is it legal to decline to hire an applicant who refuses a pre-employment drug test?

The controversy over drug testing involves random testing of present employees. Most states permit pre-employment testing of all job candidates. You should have a written policy that provides for the following:

• the applicant is informed in writing of the testing requirement;
• the test is reliable and a positive result will be confirmed by a second independent test; and
• the results of the test are confidential and may not be disclosed to any person other than ones to whom disclosure is necessary.

4. Can an employer’s drug policy prohibit the use of certain prescription drugs?

Employers have every right to create a drug-free workplace. But with employees potentially protected by the ADA, you must be able to show that drug inquiries are “job-related and consistent with business necessity.” For example, if a truck driver takes a prescription medication that causes sleepiness, the safety hazard he/she may pose would likely be considered a legitimate business concern.

Here are some more tips to help ensure your prescription drug inquiries stay on the right side of the legal line.

• Remove blanket requests for drug information from your policy.
• Require everyone involved with drug testing and inquiries to document the reasons for needing information about prescription drugs, as well as how the information is related to employees’ jobs. Not only does this documentation make employees fully aware of the situation, but also it gets managers to think before they act.
• Stress confidentiality. Let employees know that their prescription drug information will not be shared with anyone who doesn’t have a legitimate business need-to-know. Make sure managers know their confidentiality obligations as well.
• Evaluate procedures. Is it possible to allow employees to send their prescription information directly to the company doctor, the drug testing company, etc., and skip managers’ middleman hands?
• Don’t forget to check applicable state privacy laws.

5. An employee has been coming to work with what “seems” to be alcohol on his breath. However, nobody’s actually seen him drink. At what point can an employer do something, and what is the best way of handling it?

Without proof of the employee’s drinking on the job, you have to ask yourself: Is this employee’s performance suffering? If yes, make sure everything is clearly documented. Then discuss the performance problems with the employee, but don’t mention the use of alcohol. Instead, ask him if there is anything bothering him that could be causing his performance to slide. Offer the company’s help in resolving any personal problems, perhaps through an Employee Assistance Program.

If his performance is fine, make sure you still keep tabs on him, documenting any performance and/or discipline problems that may arise. Other than that, there’s not much else you can do unless you have solid proof. Here are some tips to keep in mind if you do discover that an employee has been drinking on the job.

• Make sure you have a reliable witness present, such as the HR director or another manager, when confronting an employee about on-the-job drinking.
• If you think the employee is in no condition to drive home, don’t let him/her. Call a family member, friend or taxi to pick up the employee instead.
• Immediately after confronting the employee, prepare a detailed, written report, including signed statements from all witnesses.
• Follow company policy to the letter. If it calls for a drug/alcohol test, inform the employee in the presence of a witness in case he/she refuses. You may make refusal of the test grounds for discipline, including dismissal.

6. Is addiction to alcohol considered a disability under the ADA?

An alcoholic is considered a person with a disability under the ADA and may be entitled to consideration for accommodation, if he/she is qualified to perform the functions of the job. However, an employer may discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that he/she is not qualified.

If an alcoholic is often late to work or is unable to perform the duties of his/her job, an employer can take disciplinary action on the basis of the poor job performance and conduct. However, an employer may not discipline an alcoholic more severely than it does other employees for the same poor job performance or conduct.

7. What can an employer do when a recovering alcoholic who’s in an agreed-upon treatment program shows up for work with red eyes, slurred speech, and whiskey on his breath?

The employee’s slurred speech and unsteady walk give you sufficient safety reasons to order an immediate test. Some companies are turning to performance impairment tests for on-the-spot information, but drug tests involving urinalysis are still the norm. If the test confirms your suspicions, you should take whatever discipline is called for in your policy.

A company has both a right and a responsibility to act immediately if an employee shows up for work under the influence of alcohol. The right is to take disciplinary action according to company policy; the responsibility is to protect the employee from injuring himself/herself or other employees.

Here are some tips for dealing with alcohol at work:

• If the employee signs a rehabilitation agreement, make sure it states that violation of its terms could result in immediate termination.
• If you have reasonable suspicion that an employee has reported to work under the influence, demand an immediate test. Slurred speech and erratic behavior are sufficient grounds to investigate further and to demand testing.
• If the employee refuses a blood test, warn him/her that termination could result. Under no circumstances should the employee be allowed to work.
• Have another supervisor present during the meeting to serve as a witness if the case goes before a third party.
• Do not allow alcohol-impaired employees to drive themselves home. If there’s an accident, the company could be found liable. Try to have a family member or a security guard drive them home, if possible. Involving another employee could backfire, particularly if the problem employee gets out of control.

8. What are some of the symptoms that indicate that a worker could be abusing drugs or alcohol?

Supervisors should be aware of these major symptoms that indicate that a worker could be abusing drugs or alcohol.

• Sharp declines in job performance, accompanied by a lack of care or interest in the work.
• Decreased energy and sharp mood swings.
• Failure to meet deadlines and appointments.
• Excessive lateness and absenteeism, especially on Mondays and Fridays and the days before and after a holiday.
• Borrowing money from other employees.
• Carelessness in personal appearance and hygiene.
• Increased disciplinary problems.
• Unusual outbursts or problems controlling temper.
• Secretive behavior.
• Sudden change in attitude.
• Wearing sunglasses indoors or other inappropriate places.
• Associating with individuals known to be involved with or have problems with drugs/alcohol.
• Theft of company or co-worker property.

Note: Since these symptoms can also be indicative of other problems, be careful not to misdiagnose an employee as a substance abuser or make false accusations that could lead to ADA, privacy or defamation claims.