3 Tough Disciplinary Issues: Drug and Alcohol Use, Insubordination, Workplace Searches

by Stuart R. Buttrick

Although the types of misconduct that employees can engage in is unlimited, some disciplinary issues occur over and over again. Among the most common — and difficult — issues for employers to handle are drug and alcohol use, insubordination, and workplace searches of company or employee property. This article will offer some best practices for addressing those three areas.

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Drug and alcohol use
Your supervisor may have reasons to suspect that an employee is (1) using drugs or alcohol while on the premises, (2) under the influence while at work, (3) in possession of drugs or alcohol while at work, or (4) selling drugs on the premises.

Keep in mind that individuals who currently are abusing alcohol are protected by the Americans with Disabilities Act’s (ADA) disability and reasonable accommodation provisions, although individuals who currently are engaging in unlawful drug use aren’t covered.

Employers may prohibit employees, however, from being under the influence of or using alcohol while at work. They also may discipline or fire a worker whose current alcohol use adversely affects his job performance, and employers can require those who abuse or are dependent on alcohol to maintain the same performance standards as all other employees.

Here are some guidelines to consider when dealing with an employee with a drug or alcohol problem:

• If you don’t have them already, establish strong rules prohibiting any of the aforementioned conduct. If your employees are unionized, you must bargain with the union before implementing a drug testing program.
• Ask that any employees who are using a prescription drug that might affect their ability to perform job duties report that fact to your company’s HR department. All doctors’ statements after an extended medical leave of absence should contain that type of notification.
• Have a reasonable basis for suspecting drug- or alcohol-related conduct (i.e., you have a reason to believe that the employee is under the influenceof or in possession of drugs or alcohol).
• If you suspect drug or alcohol use, document the conduct or behavior of the employee in question and the things that confirm or enhance your suspicions.
• Confront the employee, and ask him about what you suspect. Document his responses, and pay attention to his initial reactions, tone of voice, manner of speaking (e.g., slurred words), physical coordination, and any alcohol smell on his breath.
• Question any witnesses, and document their responses.
• Consider asking the employee to consent to a search of his locker, purse, lunch box, and so forth, and confiscate and retain any drugs or alcohol.
• If necessary, ask the employee to submit to drug or alcohol testing.

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Insubordination
Employees frequently face suspension or termination for insubordination. Typically, “insubordination” is considered to be the direct refusal to follow a supervisor’s instruction or order.

In defending a disciplinary action for insubordination, employees often argue that they didn’t understand that they were being given an order or instruction or that their actions could lead to discipline. To avoid that problem, consider the following procedures:

• Ask yourself if the request is a legitimate, reasonable one falling within the employee’s job responsibilities.
• Make sure the employee clearly understands your directive (i.e., what you want him to do) and realizes that it is an order or directive.
• If the employee continues to resist, inform him that while you understand he may disagree with your directive, you’re instructing him as his supervisor to do as you say, and you’ll expect him to follow through.
• If the employee continues to resist, inform him that you’re giving him a direct order and that if he doesn’t comply, you will consider the behavior to be a basis for discipline.
• If he is a union employee, tell him that while he may have the right to file a grievance, he doesn’t have the right to refuse to comply.
• If he still resists after you’ve followed those steps, discipline him.

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Searching employees’ lockers, lunch boxes, and desks
Many of you are familiar with the phrase “search and seizure.” Supervisors, however, sometimes mistakenly believe that the phrase prohibits or restricts their right to inspect employees’ lockers, lunch boxes, purses, desks, cars, and other items on company property.

The concept of an illegal search and seizure is a constitutional guarantee, and the prohibitions generally apply only to the government and not to private employers. As a result, there is no general legal prohibition on a private employer’s right to ask employees to submit to an inspection of their lockers, purses, lunch boxes, and so on.

Conducting searches can be a sensitive matter. Consider the following tips if you find it necessary to conduct one:

• Have a reasonable basis for wanting to conduct the search (e.g., stolen or missing goods or prohibited materials such as drugs or alcohol).
• Have a reasonable basis for wanting to conduct the search with respect to the particular employee (e.g., you have reason to believe that she might have stolen goods, drugs, or alcohol in her possession).
• Explain the reason you would like to conduct the search to the employee.
• Conduct the search in a calm, professional manner.
• Don’t use force on the employee.
• Avoid touching the employee unnecessarily.
• Select a place to conduct the search that will minimize any potential embarrassment to the employee.
• At least two management representatives should be present during any search to avoid a later claim by the employee that something was taken.
• If a female employee is involved and raises objections because her purse, locker, or desk contains personal female items, have a female management employee conduct the search if possible.
• Don’t conduct the search without the employee’s permission (except as noted below). If he refuses to allow the inspection, inform him that he’s expected to cooperate and that if he doesn’t, he will be disciplined or discharged for insubordination.
• Areas or containers that you supply for employees to use at work may be searched without their permission, including lockers, toolboxes, and desks. It’s still a good idea, however, to give the employee an opportunity to open the locker, tool box, or other item voluntarily before going forward with the search.
• To the extent that you find evidence of what you were seeking, immediately place it in an envelope, box, or other container and note the date, time, employee’s name,date, time, and people present when the item was removed. Maintain the evidence in a secure place, and then document each time it leaves your possession.
• If the employee is represented by a union and asks for a union representative to be present, you must make one available if you plan to conduct the search.
• If your employee handbook doesn’t already contain a search policy, implement one that provides that there is no expectation of privacy in the workplace and that the company reserves the right to search employees, their work areas, lockers, personal vehicles if driven to work or parked on company property, and other personal items such as bags, purses, briefcases, backpacks, lunch boxes, and other containers. If you’re a unionized employer, you’ll need to bargain with the union before instituting the policy.

State-by-state comparision of 50 employment laws in all 50 states, including employee privacy, off-duty conduct, and drug testing

Drug testing raises serious issues
Because drug testing creates some very serious issues, employers must handle it delicately. Here are some tips:

• If the employee is represented by a union and requests that a union representative be present, you must make one available if you plan to test for drugs.
• Chemical testing (urinalysis) should be done immediately, using a professional, competent method.
• Because urine tests have many inherent inaccuracies, employers must confirm a positive result by conducting a second, more elaborate test.
• Be aware that prescription drugs can cause a positive result to occur.
• Employers must keep all tests confidential.
• If the employee refuses to take a test, tell him that his failure to do so may be considered a basis for discipline.
• Employers should have either a written drug-testing policy or program or a handbook provision letting employees know that they’ll be required to cooperate in an investigation that may include drug testing.
• Employers may want to consider alcohol or drug rehabilitation programs as an alternative to traditional discipline. If you do, employees must understand that the program is their “last chance” and consent to follow-up tests.
• If you discipline or discharge employees, be sure you have strong evidence and are careful what you say about the discipline because of possible defamation claims. If an employee fails a drug or alcohol test and you decide to discipline him, remember that your stated reason for the discipline is the fact that he failed the test, not drug use.

Workplace Investigations: The HR Manager’s Step-by-Step Guide

Bottom line
Stopping employees’ drug and alcohol use, dealing with insubordination, and conducting effective workplace investigations can be some of the most difficult personnel matters confronting HR professionals. As with any personnel matter, however, if you have questions or concerns about any of the three areas, you’re encouraged to contact your counsel before taking action.