In part 1 of this article we began to explore some of the laws and approaches surrounding employees with potential substance abuse problems. Today we will look at some examples of employees with substance abuse problems as well as some training and guidance tips.
The Drunk Employee Example, Part 1
Imagine (or, for many of you, just simply recall the last time) an employee arrived at work impaired by alcohol. It is likely you correctly made no mention of addiction or alcoholism at all but, rather, addressed the conduct. The employee was likely relieved of his or her duties. Perhaps you referred the individual for a reasonable suspicion alcohol test. Hopefully you made arrangements for transportation home for the employee or, if testing was directed, to the testing site and from the testing site home. Another legal option is to direct a substance abuse assessment of employees who come to work impaired by illegal drugs or alcohol or engage in work-related use and then require compliance with assessment recommendations on rehabilitation or treatment.
All of these employer tools are legally permissible because employees who are impaired by illegal drugs or alcohol, or who use illegal drugs or alcohol on employer premises or during work time, are not entitled to protection under disability discrimination or other employment laws.
Therefore, when there is workplace impact from substance abuse, threading the needle on legal compliance is as simple as sticking to facts and applying performance metrics to each situation. For example, an employee who frequently “bookends” weekends—takes days off without authorization or prior notice on Fridays and Mondays—may or may not be abusing substances or hungover, but the best approach is to administer, evenhandedly, attendance policies without trying to look behind known behavior.
The Drunk Employee Example, Part 2
To expand on and illustrate problems with unnecessarily inquiring about or assuming an employee might have an addiction, consider the same example. The employee shows up to work impaired, trained supervisors determine and document reasonable suspicion of impairment, and the employee tests positive on a reasonable suspicion alcohol test. When meeting with the employee, whom the employer has decided to retain, the employer, without a substance abuse assessment, tells the employee that he or she must go to rehabilitation because he or she has a drinking problem. The employee denies any drinking problem and refuses to go to rehabilitation. The employer terminates his or her employment. Was the employee terminated because of the policy violation (work-related impairment and a positive test result) or because the employer, without professional involvement, perceived the employee had a drinking problem despite employee denial and directed rehabilitation? The first is a valid reason to terminate an employee’s employment; the other potentially violates disability laws and various state law privacy principles. (In one case, for example, an employee sued an employer that forced inpatient treatment without a substance evaluation, successfully arguing that she had no alcohol abuse issues but, rather, had simply been on a “binge.”) Unnecessary questions and uninformed conclusions regarding substance abuse have created legal questions and factual disputes for many employers that could have been avoided with careful focus and attention to objective facts.
The Case for Intervention Is Even Weaker Absent Specific Evidence of Substance-Based Impairment
What if the concern an employee might be an addict arises indirectly and without specific evidence of substance-based impairment, such as private or even anonymous tips or deteriorating work performance? Such indirect evidence presents even weaker grounds to approach or confront an employee who might be an addict. A tip may have been offered by an individual with an axe to grind, and employers have no way to assess the credibility of the informant on an anonymous tip. Deteriorating work performance could be attributable to a multitude of factors unrelated to substance abuse. Absent contemporaneous evidence of impairment, employers should avoid direct confrontation with an employee who is suspected of being or who might be an addict.
Supervisory Training on Reasonable Suspicion Determinations
Because behavioral observations of impairment are so critical, employers should invest in and conduct training for supervisors so they can make reasonable suspicion determinations of employee impairment or working under the influence of illegal drugs and/or alcohol. We do not typically recommend, however, that such training include more amorphous and hard-to-define behaviors cast as “signs” of a substance abuse issue. Why? In most cases, such behavior would otherwise be covered under and managed through application of set standards of performance and behavior, e.g., absenteeism, disappearance from worksite, blown deadlines, and the like. Training on the “signs” of abuse might be appropriate if the training is carefully developed and includes a mandatory elevation to senior HR or executive management before any communications with the employee.
When Is it Okay to Discuss A Substance “Problem,” an “Addiction,” or “Alcoholism”?
Although it is generally wise to avoid discussing suspected substance use issues, there are times when the discussion is unavoidable. Under the ADA, an employer must engage in the interactive process when an employee asks for an accommodation or when the employer becomes aware of its necessity. There is no hard-and-fast rule regarding when an employer “becomes aware” of the necessity for a reasonable accommodation. That analysis is fact-dependent. Of course, do not guess or speculate that an employee requires a reasonable accommodation for a substance abuse problem or addiction. And, when otherwise confronting an employee about a job performance or behavior issue, with or without an evident substance abuse component, the issue may arise; even then, it bears emphasis that employers should not “agree” with the employee that he or she has a problem or is an addict but should manage the situation based on context. Because these scenarios are so delicate and fact-specific, if you suspect that it is necessary to engage an employee who might have an addiction, it would be prudent to seek counsel.
Dale L. Deitchler, shareholder at Littler represents management in all phases of labor law, labor relations, and standards. Dale also counsels clients on a wide variety of employment law issues, offering advice and practical solutions about the Family and Medical Leave Act, discipline and discharge, employment discrimination, employment and non-competition agreements, and unemployment compensation
Jeffrey E. Dilger represents and counsels clients in a broad range of labor matters, including: Unfair labor practice proceedings before the National Labor Relations Board, labor arbitration, labor negotiations, and National Labor Relations Board elections. In addition to a robust labor law practice, Jeff routinely counsels clients in the ever-evolving field of federal and state drug and alcohol testing laws. Jeff’s practice includes assisting clients with all aspects of drug and alcohol testing programs, including creation, implementation and enforcement.
 See Miners v. Cargill Comm’ns, Inc., 113 F.3d 820 (8th Cir. 1997).