10 Tips for Your Business’ Drug and Alcohol Policy

Drugs, alcohol, and employment generally don’t mix well. Employers face tricky choices when creating policies that address workplace substance use and abuse while still ensuring they stay within the bounds of state and federal laws, including the Americans with Disabilities Act (ADA). Employers must decide whether to require drug testing and then craft policies that comply with drug-testing laws and ensure compliance for any federally mandated testing. The fundamental goal is to promote workplace safety in an environment in which both legal and illegal drug use continue to grow.

Attorney Peter D. Lowe recently spoke about workplace substance abuse, including statistics, effects, and guidelines for creating workplace policies to minimize or prevent problems.

50 Employment Laws in 50 States, including substance abuse

Effects of Workplace Substance Abuse
Employers have many concerns regarding workplace substance abuse — and rightfully so. Lowe said it has been “calculated that American businesses lose $82 billion a year in productivity through the effects of impairment in the workplace through drugs and alcohol.” According to Low, other negative effects employers say are their biggest concerns include:

• danger to employees and the public,
• increased workplace accidents,
• more absences,
• decreased productivity, and
• lower morale

So what can you do to combat these issues? Does your workplace have an alcohol and drug policy?

10 Tips for Your Business’ Alcohol and Drug Policy
When crafting your policy, here are 10 guidelines Lowe suggests.

1. Include clear rules for illegal drug and alcohol use and possession. It’s important to differentiate between legal and illegal drugs. Employers should pay special attention to state laws on medical marijuana.
2. Address workplace possession and impairment resulting from legal drugs such as medical marijuana or prescription drugs. Lowe noted, “We want to be able to provide clear guidance for employees and our supervisors on how to address the impairment issues from legal drugs.”
3. Address the use of prescription drugs for safety-sensitive positions. Between 2000 and 2007, the prescription of opinoids (found in common painkillers) increased by almost 50 percent in the United States. Additionally, abuse of such drugs has become more prevalent. Fitness-for-duty certifications may be necessary, especially for safety-sensitive positions.
4. Specifically define “impairment” and/or “under the influence” in your policy. The specifics of your policy also need to take into consideration that legal drug use — such as prescription painkillers — can cause impairment.
5. Include the “direct threat” standard from the Americans with Disabilities Act. (The EEOC’s ADA regulations explain that a “direct threat” is a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation.) This legal standard may be the rationale for removing an employee from a safety-sensitive position, regardless of the cause of the impairment.
6. Always put safety first, including adopting policies for getting an employee who is under the influence to their home. Consider administrative leave as an option while a fitness-for-duty evaluation is conducted, particularly if the employee is under the influence of legal drugs such as medical marijuana (in states where it’s legal) or prescription drugs.
7. Develop clear and consistent consequences for policy violations.
8. Address employees covered by federal laws such as the ADA and the Family and Medical Leave Act (FMLA).
9. Use language that explains the concept of reasonable accommodations. Lowe noted that “the ease of establishing a disability has greatly been increased by changes to the ADA, and . . . the bar gets set lower and lower on establishing a disability.” Past drug addiction, for example, can be classified as a disability that may require reasonable accommodations such as intermittent leave for medical treatment. A current user of illegal drugs, however, is not disabled. An alcoholic — either using or in recovery — is disabled. That said, reasonable accommodations don’t include lowering performance standards, excusing misconduct, or tolerating absenteeism or tardiness.
10. Intersect your policy with any drug- and alcohol-testing program you have in place.

Peter D. Lowe is a partner at Brann & Isaacson in Lewiston, Maine, and a member of the Employers Counsel Network. He is editor of the Maine Employment Law Letter. He provides advice and counsel on labor and employment law and education law and advises clients on personnel practices and employee relations matters.

Purchase a CD of Peter Lowe’s presentation on “Employee Alcohol and Drug Abuse”