Impaired Employees? Protect Your Business through a Lawful, Tailored Policy

Kevin S. Smith

Author: Kevin S. Smith

POST DATE: 7.22.19
Ccha  Business Services

Drug and alcohol abuse by employees can cause serious problems for employers. These problems can include low productivity, absenteeism, risk of liability for accidents or damage caused by employees under the influence, and decreased morale of other employees who work with the impaired employee. The existence of a written, legally compliant drug and alcohol policy made available to employees and uniformly enforced is essential for every company, large or small.

Drug and Alcohol Policy "Must Haves" for Your Company

When creating a drug and alcohol policy, an employer must first assess its purpose for having such a policy and what it hopes to accomplish by the policy – in other words, “the ‘why’ behind the ‘what’.”  

For example, whether the policy should provide for random drug testing, or should only test employees based on “reasonable suspicion” of violating the policy, might depend on what type of industry the employer is in, what types of jobs its employees perform, and what the employer is trying to guard against. An employer with moveable heavy machinery in its workplace, for instance, may want to perform random drug testing of its operators given the significant risk of injury to the operator, other employees, and the employer’s products and facilities if such an operator is impaired.  On the other hand, an employer who operates an office environment with cubicles, telephones, and computers may only wish to perform “reasonable suspicion” drug testing when an employee exhibits signs of being impaired on the job.

Certain items are “must haves” for any policy, such as a brief statement of the employer’s reason(s) for having the policy (e.g., the employer’s commitment to providing a safe working environment for its employees and quality products or services to its customers, both of which are impeded when employees work under the influence), and that the possession, use, manufacture, or distribution of alcohol or controlled substances on company property is prohibited and can subject an employee to discipline, up to and including termination.

Beyond those “must haves,” however, the employer will need to consider provisions concerning: drug-testing, self-reporting and counseling and treatment options, confidentiality, supervisory training regarding dangers and symptoms of substance abuse, treatment, and disciplinary alternatives, and legal requirements found in legislation such as the Drug-free Workplace Act, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSHA), and the Health Insurance Portability and Accountability Act (HIPAA). 

Additionally, if the employer’s policy will include testing, then the employer needs to consider who will be responsible to pay for testing and where the testing will be conducted. For example, a typical drug-testing policy will state that the employer will pay for the initial drug test, but that if the employee wishes to contest the result, then the employee must pay for any additional drug test. Also, an employer with a unionized workforce that does not currently have a drug-testing policy must bargain with the union concerning such a policy before one can be adopted.

Don't Make It Personal

When crafting such policies, employers should avoid delving into employees’ personal lives or employee use of drugs and alcohol off company property. This allows employers to avoid liability for knowledge of drug or alcohol use by a particular individual, should an incident occur subsequent to obtaining the information. Employers also need to ensure they do not engage in discriminatory behavior towards individuals who have been erroneously accused of using drugs, have used drugs in the past, or belong to a particular racial or ethnic background. To avoid the appearance or practice of discrimination, employers should strive for routine enforcement pursuant to company policy, enforcement that does not amount to harassment or humiliation, and equivalent treatment for similarly situated employees. 

Finally, employers need to ensure that they are in compliance with the Americans with Disabilities Act, as well as the Family and Medical Leave Act, when working with an employee who is facing drug or alcohol use or addiction. Similarly, employers must be careful not to discriminate against an employee or applicant who tests positive for prescription drugs taken under the supervision of a licensed health-care professional. When it comes to drug testing employees, public employers are subject to different standards than private employers. Read more about Random Drug and Alcohol Testing by Public Employers in this past blog post.

Drug-Free Workplace Policies are Essential

Drug-free workplace policies are essential for most employers in this day and age, and legally required for many. If you do not have such a policy or you have a drug-free workplace policy that has not been revised in a few years, have an experienced attorney review it to insure it still complies with the most recent changes to applicable laws. Church Church Hittle + Antrim is here to help: please consult with one of our experienced employment lawyers to craft or review your drug-free workplace policy today.