Employers have an obligation to ensure employees are not using alcohol and drugs in the workplace because it could affect the safety of the whole team. There is latitude to discipline employees if alcohol or drugs are being used, but employers need to proceed with caution to handle the situation appropriately if substance abuse is suspected.
Alcohol and drugs in the workplace: What to do if you suspect substance abuse
If the employer suspects substance abuse on the part of an employee, the first thing to do is to focus on objective observations of the employee's behavior and any performance issues. Document their attendance; quality and accuracy of work; and their interactions with customers, supervisors and co-workers. Administer discipline when appropriate, in accordance with company policy and past practice. Treat employees consistently.
Some employers opt to have a drug testing policy that allows for testing when there is a reasonable suspicion of drug use. This is legally permitted, but employers need to be sure to use it appropriately.
"When we talk about reasonable suspicion testing, keep in mind it requires more than just a hunch. Supervisors must be able to point to objective facts . . . and be able to articulate a rational inference that can be drawn from those facts." Susan Fahey Desmond advised during a recent CER webinar. This is why it is so important to document the observed behaviors.
When utilizing "reasonable suspicion" testing, employers should create an advance list of actions or behaviors that would create reasonable suspicion—a reasonable suspicion checklist. Here are some examples of items that might be on a reasonable suspicion checklist:
- Unsteadiness or inability to walk
- Slurred, incoherent, or slobbering speech
- Being argumentative or unusually sarcastic
- Being hyperactive
- Using out-of-character profanity
- A flushed, pale, or sweaty face
- Poor hygiene
- Odor on their breath
"Keep in mind here that although these are suspicions of being under the influence, these can also be [signs] of a number of other things." Desmond noted. Incoherent speech could be caused by insulin shock for a diabetic, for example.
There are additional signs of addiction to look for, but many of these may be more difficult to spot in the workplace and may change over time. Some signs of addiction might include:
- Extreme mood changes
- Changes in energy, such as being unexpectedly and extremely tired or energetic
- Weight loss or weight gain
- Unexpected and persistent coughs or sniffles
- Seeming unwell at certain times and better at other times
- Pupils of the eyes seeming smaller or larger than usual
- Secretiveness
- Lying
- Stealing
- Financial unpredictability, perhaps having large amounts of cash at times but no money at all at other times
- Changes in social groups, new and unusual friends, odd cell-phone conversations
These addiction signs may not be immediately obvious, but they're good to bear in mind when other suspicion factors are present.
What should be done when an employer has a drug policy that permits testing upon reasonable suspicion and does indeed suspect the use of alcohol and drugs in the workplace? Here are some steps to take:
- Make sure the employee is in a safe area and away from any heavy machinery.
- Handle the issue as confidentially as possible.
- Take the employee to your laboratory of choice for the test. Do not let the employee transport himself/herself to the laboratory, both for safety reasons and to ensure the integrity of the test.
The above information is excerpted from the webinar "Drugs and Alcohol: How To Keep Them Out of Your Workplace and Discipline Policy Violators." To register for a future webinar, visit CER webinars.
Susan Fahey Desmond is a Partner in the New Orleans, Louisiana, office of Jackson Lewis LLP. She specializes in the areas of labor and employment and civil litigation, including representing employers in Family and Medical Leave cases, discrimination claims relative to age, sex, disability, race, religion, and sexual harassment, and handling EEOC charges and other administrative complaints through the administrative and judicial process.