There is clear agreement that substance abuse—whether it’s alcohol, prescription drugs, or illegal drugs—adversely affects employers and their businesses. Some estimate the loss of productivity for U.S. employers has been as much as $200 billion annually! General concerns for safety at work, injuries on the job, theft, loss of employee morale, and costs related to absenteeism, recruiting, training, turnover, and healthcare utilization illustrate why substance abuse in the workplace is problematic. Below are some tips for dealing with substance abuse in the workplace. 
10 important do’s and don’ts
1. Don’t be the ostrich. Many employers don’t want to deal with substance abuse in the workplace, so they ignore it, thinking it won’t happen to them or a policy isn’t needed. Don’t be that employer. Indeed, chronic abusers seek out employers that don’t have substance abuse policies for their workplace. Many employers also tend to ignore or enable the substance abusing employee in his behavior. If there are suspicions of abuse, rely on your workplace policy and your employee assistance program (EAP).
2. Establish a policy against substance abuse in the workplace. This is often referred to as a drug-free workplace policy. However, the name can be misleading since it may convey to employees a lack of availability of counseling and assistance. The policy should address the prohibition of alcohol use, illegal drug use, and impairment from prescription drug use on the job. It should inform employees about the availability of drug counseling, rehabilitation services, and EAPs, among other provisions, and encourage employees to use them.
3. Address prescription drugs specifically. Recognize that prescription drug use is legal as long as it doesn’t impair an employee’s work performance. The challenging part is when it’s suspected that the use of prescription drugs is impairing an employee’s work performance. Even more complicated is the suspicion of illegal drug use and then the revelation that the employee has a medical condition that requires prescription drugs.
It is recommended that you undergo a thorough analysis, in conjunction with the advice of counsel, of whether the prescription drug use is impairing the employee’s performance or whether the medical condition or the prescription drug is causing behavior that makes it appear the employee is impaired when in actuality she isn’t.
4. Consider postoffer preemployment drug screening. Many employers, as part of their drug-free workplace policy, require a postoffer preemployment drug test. This is seen as a way to eliminate abuse problems in the workplace from the outset. Although such a test clearly has its benefits, you shouldn’t be under any misconception that it will eliminate substance abuse from the workplace. Clearly, other abuses arise, and they should be anticipated and addressed in the policy as well.
5. Consider postaccident and reasonable suspicion drug testing. Many employers also have found that their drug-free workplace policy provides more overall benefit if they also establish drug testing following an on-the-job accident and upon the reasonable suspicion of impairment at the workplace. Planning and education are key when establishing these forms of testing.
You should establish a relationship with a reputable drug-testing facility close to your workplace to quickly and timely have a postaccident test conducted. Similarly, educating supervisors or managers about the signs of use, abuse, and impairment is essential for all personnel who will be determining on what grounds an employee will be sent to be tested based on the reasonable suspicion of impairment.
Some medical conditions that are protected under the Americans with Disabilities Act (ADA) and state disability laws cause individuals to exhibit conditions or behaviors that are similar to drug or alcohol use. Accordingly, educating persons on the similarities and differences is important.
6. Don’t engage in random drug testing without the advice of counsel. Although employers tend to like the thought of random drug testing as an effective way to detect and deter drug and/or alcohol use at the workplace, random drug testing in many states is extremely limited and should be implemented under the advice of employment counsel experienced in this very thorny area of the law.
7. Know and comply with your local ordinances regarding drug testing. For example, the city of San Francisco has an ordinance that imposes specific limitations on drug testing by employers within its city limits. It doesn’t affect an employer’s testing of applicants, but it does limit testing of employees. The following conditions must be met in order for an employer to test an employee:
- There must be reasonable grounds to require the drug test;
- There must be clear and present physical danger to the employee, another employee, or the public; and
- The employee must have the opportunity to have the sample retested by another facility.
8. Promote your EAP. You should establish and promote the use of your EAP. Many employees are unaware or forget about the benefits and services an EAP provides when they are in crisis or dealing with the very problems with which the program could assist. Therefore, you should provide periodic reminders that highlight the various benefits provided by the EAP. Think quarterly “we care about you” messages that would include substance abuse assistance.
9. Consider assisting an employee in lieu of firing. One of the more difficult decisions for an employer is what to do with an employee who has clearly violated its policy against drugs and alcohol in the workplace. Employers should remember that an alcoholic who meets the definition of “disabled” and is qualified to perform the essential functions of the job, with or without reasonable accommodation, is protected from discrimination under the ADA.
10. Consider modifications to holiday and employee appreciation events. What a way to end this list—on a bummer note. But it doesn’t have to be seen as such. In general, many employees view a “no alcohol” work event as punishment and not a reward and clearly don’t see the concern for liability the same way you do. Therefore, perhaps a solution is to offer taxi service home to everyone who attends and drinks alcohol at a work function. Another would be to encourage designated drivers by giving the drivers some prize, award, or item. Another option is to encourage reasonable consumption by serving only wine and beer and/or having limited drink tickets.
Having said that, know that a recent California case held that an employer can be liable for an employee’s harm to others following work activities where alcohol was served if the activities were (1) of some benefit to the employer or undertaken with its permission or (2) a customary incident of employment. In the case, the company received a “benefit,” albeit tangential, from the holiday party and the drinking of alcohol.
Bottom line
There is no getting around it. Substance abuse affects us all, regardless of whether we ourselves are using or abusing or our colleagues are using or abusing. The above list should help you determine strategic business decisions given the challenging reality of the workplace. Furthermore, it’s recommended that any and all policies regarding substance abuse in the workplace be considered and implemented with the assistance of legal advisers or seasoned HR professionals.
Michelle Lee Flores is an attorney with Cozen O’Connor in Los Angeles, California. She may be contacted at mflores@cozen.com.