In most personnel policies and employee handbooks, you will find something forbidding employees from coming to work under the influence of drugs and/or alcohol. But what often does not follow is an actual policy to determine whether an employee is under the influence. With no formal policy for determining whether an employee is under the influence, it is either functionally impossible for the employer to enforce its drug and alcohol-free workplace policy or the enforcement will be haphazard and arbitrary, which could leave an employer open to legal liability. So, I encourage employers to add a drug and alcohol testing policy to personnel manuals and employee handbooks.
But what should the policy contain? I suggest implementing a policy that has four parts: 1) a system for determining whether the employee is under the influence; 2) a mechanism for testing the employee to determine whether he or she is under the influence; 3) disciplinary action for being under the influence; 4) rehabilitative actions the employee must undertake before he or she can return to work.
For the first part, employers should develop a series of indicators that would give them a reasonable suspicion that the employee is under the influence. Employers should consider creating checklists that supervisors can review. These indicators should include things like slurred speech, poor balance and coordination, smelling like drugs or alcohol, abnormal behavior, dilated eyes, etc. I recently wrote a blog post on what symptoms employers should consider in determining whether an employee is under the influence, which you can view by clicking here.
The second part should explain exactly what a supervisor should do if he or she has a reasonable suspicion that an employee is under the influence. To test whether someone is under the influence of alcohol, I suggest having someone in HR trained to administer breathalyzer tests and have that employee take this test. To test whether someone is under the influence of drugs, I suggest contacting a local drug testing clinic and coordinating with them on how to administer drug tests.
The third part should explain exactly what discipline the employee will face for being under the influence. If the employee’s blood alcohol level is relatively low (like under .04) then perhaps the discipline should be less severe than if the level is higher. As for drugs, if a test confirms that there are drugs in the employee’s system, that test, along with the supervisor’s observations, is enough to reasonably assume that the employee is under the influence on the job and should be disciplined. That discipline could include suspension or discharge.
The fourth part should explain what the employee needs to do to rehabilitate him or herself. Perhaps the employee needs to attend drug or alcohol counseling. A frank conversation with the employee’s supervisor discussing why the employee was under the influence and what can be done to prevent it from occurring in the future is probably a good idea.
Our labor and employment team has developed drug and alcohol testing policies for a number of clients, so feel free to contact us if you would like us to help you develop such a policy.
