No employer wants impaired workers on the job, and most take steps intended to prevent drugs and alcohol from causing harm. But despite carefully considered policies, problems often occur. Statistics reported in the June 2 Wall Street Journal are giving employers more to worry about. 
Statistics from Quest Diagnostics Inc., a major administer of workplace drug tests, show that the number of U.S. workers testing positive for drugs increased slightly from 2013 to 2014. Drug use was indicated in 3.9 percent of the 9.1 million urine tests the company conducted for employers in 2014. That’s up from 3.7 percent in 2013. Before 2013, positive tests had dropped almost every year for 24 years, according to the Journal report.
So employers have good reason to tackle the issue through policies. Susan Fahey Desmond, an attorney with Jackson Lewis P.C. in New Orleans, recently conducted a Business & Legal Resources webinar titled Drugs and Alcohol in the Workplace: Key Policies and Legal Issues for HR, and she emphasized that employers shouldn’t wait until they have an impaired employee to adopt a policy.
Policy pointers
Desmond says a policy should outline the type of testing the employer requires—pre-employment, reasonable suspicion, random, post-accident, etc. It also should state the consequences of a positive test or an employee’s refusal to take a test, and the policy should state that test results will be kept confidential. Also, if applicable the policy should reference any state drug and alcohol testing statute.
An employer’s policy also should include a list of the most common drugs that might show up on a test as well as the procedure employees should use to report their appropriate use of such drugs, Desmond says. Employees also should be told when drug testing may take place—randomly, because of reasonable suspicion, post-accident, etc. And employees should understand the threshold level for someone being deemed under the influence of alcohol or drugs.
Desmond says employers should prepare a reasonable suspicion checklist and train supervisors to recognize when they should suspect an employee is impaired. Some of the signs to look for include someone who is unsteady or unable to walk; slurred, incoherent, slobbering speech; argumentative and sarcastic talk; poor hygiene, and the smell of alcohol on the person’s breath.
Desmond cautions against zero-tolerance policies because often the person who ends up testing positive is a high-level executive that the company wants to send through a rehabilitation program and keep on board.
If an employer has a random drug-testing policy, it needs to be truly random, Desmond says. “The choice of who should be tested should be computer-generated so you don’t run the risk of someone saying, ‘You targeted me because I’m African-American or I’m female’ or whatever a protected class may be ‘and that’s why you are asking me to take a drug test,’” she says.
FMLA, ADA implications
Desmond reminds employers that addiction is considered a serious health condition under the federal Family and Medical Leave Act (FMLA), meaning a covered employer must allow up to 12 weeks of job-protected leave to an eligible employee needing time off for treatment.
The FMLA doesn’t protect absences associated with the aftereffects of drinking such as the inability to report to work because of hangovers or because an employee is too drunk to report to work.
The Americans with Disabilities Act (ADA) also comes into play. Addiction is considered a disability, meaning addicted employees are entitled to reasonable accommodations on the job. The ADA doesn’t excuse performance problems that may have their root in addiction, though, Desmond says.
What to do
Even though employers need to consider their employees’ rights, an employer can take steps useful in preventing harm resulting from drugs and alcohol. For example, Desmond says employers may:
- Prohibit the illegal use of drugs and the use of alcohol in the workplace.
- Require that employees not be under the influence of alcohol or engaging in the illegal use of drugs in the workplace.
- Require that all employees behave in accordance with the Drug Free Workplace Act.
- Require that employees employed in industries subject to U.S. Department of Transportation requirements or the Nuclear Regulatory Commission comply with the regulation regarding alcohol and the illegal use of drugs.
- Require that employees employed in safety-sensitive positions comply with DOT and Nuclear Regulatory Commission regulations that apply to sensitive positions.
- Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior the employer holds to its other employees.
Desmond says she often finds employers under the assumption that they have to overlook performance issues for employees whose addictions qualify them for protection under the ADA, but that’s not true. “You do not have to overlook these performance issues, and actually what I have found when I deal with addiction is that usually if employers just focus on the performance issues, they really don’t have to focus on the fact that they may have an addiction at all,” she says.