Sam, one of your employees, has been acting strangely. First you noticed changes in his appearance. Then he started ignoring his co-workers. And now you've found him sleeping in his truck.
You suspect he's on drugs. That's bad enough — but even worse is your uncertainty about how to handle the problem. How can you confront Sam without insulting him? And what if your suspicion is wrong?
One thing's for sure: You have to do something. Sam's productivity is dropping. Other employees are starting to avoid him. And you know if Sam ends up hurting a fellow worker or a customer, intentionally or not, your business can be hit with a lawsuit.
"If you have an employee with a drug abuse problem, and you look the other way and that person causes an accident or harms a third party, then you may be on the hook for negligence," says Nancy N. Delogu, shareholder in the Washington, D.C., office of Littler Mendelson, the nation's largest law firm defending employers in labor disputes. "This can result in costly civil lawsuits."
Workplace drug abuse has long been a legal and safety issue. Today, though, employers face a special challenge from the advent of high-potency prescription medication. Employers can be sued for negligence when an impaired employee harms a member of the public. On the other hand, employers can be sued for wrongful discharge by workers who have been wrongly diagnosed or dismissed for using prescription medication.
The solution to the problem of dealing with Sam, and others like him, begins long before you notice anything amiss in the workplace. Your business needs to establish workable drug abuse policies that protect your business and the public.
"The best thing is to have a clear policy that prohibits the use of illegal drugs anywhere, not just the workplace," advises Delogu. "Many employers say, 'I don't want to get involved with what people are doing in their homes. I just don't want them to come to work with drugs in their systems.' It doesn't work that way. Individuals can be impaired with drugs long after they have taken them and it is difficult to know how the use of such drugs will impair performance or cause a safety issue." There is also a question of illegal activity, such as drug dealing, that you'd like to keep out of the workplace.
Your workplace policies need to conform to the laws of your state. "No one federal law covers drug-free workplace policies, except for certain employers who are federal contractors," says Delogu. "But every state does have laws allowing employers to establish policies banning illegal drug use."
Your attorney will need to provide guidance on the wording that conforms to your own state laws. Many policies contain provisions that prohibit:
- Use or possession of illegal drugs, on or away from the business premises.
- Use of prescription drugs in a way not in accordance with the prescription. "Your policy might state 'with respect to prescription medications, you are required to maintain correct dosage and tell your supervisor if you have any warnings that your drug usage may affect safe performance,'" suggests Delogu.
- The presence of detectable amounts of prohibited substances in the employee's system.
Test And Verify
Many workplace policies also call for drug testing. Here again, state rather than federal law most often applies and you should obtain an attorney's advice before instituting any workplace testing program.
"State laws vary as to when and how you can do testing," says Delogu. "Some require, for example, that you use a laboratory for testing rather than do the testing at the workplace. In such cases you may be able to save money by having the initial testing done first at your workplace. If a test comes back positive you can send the sample to a lab for a confirmatory test."
While your own policies must follow state laws, many policies call for provisions such as these:
- Pre-hire testing. "I typically advise all employers to do a pre-hire drug test," says Delogu. "About five percent of people who take these tests fail them each year."
- Random testing. "Once the employee has been hired, suspicionless drug testing is not usually done unless the employee is in a safety-sensitive position," notes Delogu. "In such cases annual testing at preset times is usually not effective, since employees who know a test is coming will stop taking their drugs temporarily. Much better is random testing, even if it is at a low frequency rate such as less than once a year. Such testing can be a deterrent and can be presented to employees as part of an overall safety program."
- For-cause testing. This is conducted whenever the company suspects the influence of drugs. "I encourage employers to have a reasonable suspicion testing policy as a tool, and tell them it's fine to hope that they won't need it," says Delogu.
For-cause testing is especially subject to state and local laws, and Delogu emphasizes that an attorney must advise you on what constitutes "reasonable suspicion" in your jurisdiction. Sometimes reasonable suspicion can be triggered by accidents, tardiness, poor productivity or behavior changes, especially if in conjunction with an increase in argumentativeness or belligerence.
- Post-accident testing following a workplace incident. This is often mandated for all employees who potentially contributed to the accident.
Be sensitive in how you do your testing. "People are often a little put out," says Joel Myers, president of Clarity Drug Test Consultants, Bend, Ore. "Definitely do it in private, keeping it confidential."
The best workplace policies will do no good if people don't know about them, or don't know what actions to take when drug abuse is observed or suspected. "People are reluctant to act when they don't know what to do," says Nicholas Barry, a substance abuse professional in Saint John, New Brunswick, Canada. "So schedule some dedicated training for supervisors. And make sure everyone in your workforce can recognize signs of drug abuse."
It should be clear in your policy that the employee who fails to report drug abuse can become liable. "The employee who knowingly lets an impaired individual enter or operate in the premises is committing an offense," says Barry.
Your training should also include the importance of controlling alcohol use. "While you cannot prohibit the use of alcohol at home, you can bar people coming to work with it in their systems," says Delogu.
Be careful when you offer alcohol at company parties, she adds. "Establish a policy that states something like, 'If we choose to serve alcohol and you choose to drink you should remain unimpaired.' It's also wise to offer some transportation home for employees who attend your party."
Dealing with suspected drug abuse calls for sensitivity. "When people behave in a way that might indicate drug abuse, you should not accuse them of using drugs," says Delogu. "Bear in mind that even if behavior is caused by the use of drugs, the person may be using prescription medication."
Approach any such employee with a statement such as: "This is what I am seeing," describing the behavior observed. Then ask, "Do you have an explanation for that?"
If the person states that he is taking prescription drugs, adds Delogu, be aware that the use of prescription drugs is in many cases protected by the Americans with Disabilities Act (ADA) or state laws prohibiting disability discrimination. While the ADA covers businesses of 20 or more employees, most states cover smaller employers. It's important to know your local requirements.
Even if an individual on prescription drugs is impaired to the point of not being fit for duty, it may be possible to accommodate. "Simply terminating employment without discussing the problem is unwise," says Delogu. "Talk with the individual and see if there is a way to accommodate any medical condition so the job can be performed safely." Delogu suggests saying something like this: "We worry that you are a safety risk. Let's sit down with your physician and see what we can do so you can perform your work safely."
As this article suggests, early action is a good antidote to a problem that can only become more serious over time. "When you see an impaired individual in the workplace be aware that the person will very likely be a repeat offender," says Barry. "So it's better to deal with the issue sooner rather than later."
For assistance in developing your own business policies you may want to seek the assistance of a substance abuse professional. A searchable database of these individuals is available at www.saplist.com.
The more familiar you are with your employees, the sooner you can act. "It's easier for a smaller employer to spot a problem because they know their people really well," notes Delogu. "On the other hand, familiarity can lead to laxity. Many smaller employers feel they don't need stated policies since they believe they will spot a problem right away. That doesn't always happen."
When the employer does spot a problem, adds Delogu, it can be too late to avoid damage to the company. "It's better to establish policies and have conversations up front to make sure your policies are understood."
Comments or thoughts on this article? Please e-mail [email protected].
Phillip M. Perry is a New York-based writer and consultant.