As with many issues in labor and employment law, dealing with issues indicating an employee’s possible substance abuse requires HR professionals to exercise caution. But do you know how to handle signs of employee substance abuse in the workplace?
The presence of an employee with possible substance abuse issues introduces risks for any company. An employee’s momentary lapse of attention can result in significant consequences, from reduced productivity to personal injury, property damage or even death.
The National Institute on Drug Abuse estimates abuse of alcohol and drugs incurs more than $740 billion annually in the U.S. from costs related to crime, lost work productivity and health care.
Add in the news stories regarding the increase in opioid abuse and the possibility of legal, medicinal or recreational marijuana use in certain states, and you can quickly find yourself grappling with a complicated, delicate HR issue.
Here are some guidelines for dealing with potential employee substance abuse and, if possible, providing the assistance employees need to overcome their addiction.
1. What should you do when you learn of an employee’s potential substance abuse issues?
Your role as an HR professional starts when you first learn of an employee’s substance abuse concern, or of an employee’s impairment in the workplace.
If you suspect an employee of being impaired on the job:
- Take immediate action to remove the employee from any safety-sensitive work and begin gathering evidence of the incident.
- If applicable state laws and your employer policy allows, send the employee for a drug or alcohol test.
Don’t rely upon hearsay or other secondhand sources. Instead, gather evidence from supervisors or others who directly observed the behavior.
Focus on the signs that point to an issue, such as:
- Disappearing unexpectedly
- Failure to meet productivity standards
- A workplace accident or another safety incident
- Observed signs of substance abuse
Avoid jumping to conclusions, counseling the employee or taking actions based solely on your perceptions.
While the signs listed above may be indicative of behaviors exhibited by someone with a substance abuse problem, the presence of any or all these behaviors may not indicate substance abuse. Rather, these could stem from performance issues or some other disability that the employer is unaware of.
It’s acceptable to ask the employee about the reported behavior. By providing the opportunity to explain the cause, the employee can decide to disclose what they choose.
You can’t ignore a disclosure once the employee admits to having an alcohol or drug problem.
2. What laws govern how you should respond to employees with substance abuse issues?
The Americans with Disabilities Act (ADA) protects qualified individuals with a disability and requires reasonable accommodation of protected-status employees.
- Protects employees who have completed rehabilitation for drug or alcohol use
- Protects employees who have a current alcohol dependency issue, whether or not they have completed a rehabilitation program
- Doesn’t protect current users of illegal drugs
- Covers employees using legal drugs, such as opioid pain medication, who develop an addiction
As soon as the employer recognizes a problem, it can be considered a perceived condition requiring engagement in the interactive process to determine what, if any, reasonable accommodation may be made.
While employers must tread carefully when dealing with substance abuse issues, they are not powerless. When the substance abuse has a workplace impact – whether on-the-job performance, behavior or attendance – employers may hold substance abusers to the same standards as any other employees.
As an employer, you may:
- Prohibit the use and possession of illegal drugs in the workplace, as well as working while under the influence of illegal drugs or alcohol.
- Develop, implement and administer drug or alcohol testing and rehabilitation programs for workplace substance abuse.
Company substance abuse policies are subject to ADA and Occupational Safety and Health Administration (OSHA) regulations, as well as state workplace drug testing and other applicable laws.
Seek outside legal counsel experienced in cases of workplace drug and alcohol abuse. Consult your attorney throughout the process of dealing with an employee suspected of substance abuse. Legal counsel can guide you at every step, from developing a substance abuse policy to enacting drug testing to dealing with an employee found using drugs on the job.
3. How can your company offer to help the employee?
You may want to afford employees every reasonable means for overcoming their substance dependency.
If the employee admits to a substance abuse problem, you’re required, under the ADA, to engage in an interactive process, whether it involves a legal substance such as prescription drugs or alcohol, or illegal drugs such as cocaine.
The interactive process:
- It’s initiated either by the employee’s request for assistance or the employer’s inquiry into behaviors that are unsuitable in the workplace.
- It’s an ongoing, bilateral conversation in which an employee may offer suggestions about an accommodation they believe will benefit them.
- The employer must either accept that offer or propose a counteroffer.
- This conversation continues beyond the point at which an agreement to an accommodation is made.
- The employer should check back with the employee periodically to confirm that the accommodation is still effective, and the employee may notify the employer any time changes may be required. In those circumstances, the interactive process conversation continues as you determine what a new modification may look like.
- The conversation never truly ends, unless or until no accommodation is necessary, including the original one.
If the employee asks for help, your offer of support can include your company’s Employee Assistance Program (EAP), or other resources to assist the employee.
The interactive process is available when an employee asks for an accommodation covered by the ADA, or when you become aware of its necessity.
There is no requirement that the employee state specifically that they are requesting an accommodation, and employers are required to engage in the process even if the employee has not requested it.
Within the interactive process:
- Determine what your organization can do for the employee and make suggestions regarding such assistance.
- Be open to suggestions made by the employee.
- Review your company’s health insurance to offer available benefits for the employee.
- Provide the company’s EAP contact information, along with information on available leave under the Family and Medical Leave Act (FMLA), state leave laws and employer leave policies.
- Offer access to mental health programs, as some employees may “self-medicate” mental illness with drugs or alcohol.
- Your company may offer the services of a substance abuse professional for the employee.
- If an employee admits substance abuse, you may request:
- A substance abuse assessment (SAP) of the employee
- Compliance with SAP recommendations relating to abstinence, education, counseling, rehabilitation, treatment or aftercare
- If legally permitted, you can require return-to-duty or follow-up testing
There are significant penalties for not engaging in the interactive process or for wrongful termination when dealing with an employee abusing legal substances.
Because these cases are so delicate and scenario-specific, seek outside legal counsel when the situation first arises.
4. What should you do if the substance abuse happens outside of work hours?
As an HR professional, you should act only when an employee is impaired at work.
Remain focused on whether an employee is impaired during work hours. If an employee drinks alcohol, takes prescription or illicit drugs or is legally using recreational or medical marijuana outside of work hours, workplace substance abuse policies are not enforceable.
For example, California state law prohibits employers from disciplining employees for engaging in off-duty conduct that is legal. Marijuana can remain in a person’s body for days, even weeks after use, so a positive drug test for marijuana does not necessarily point to impairment during work hours.
Responding to an employee with a substance abuse issue is not restricted to people who ask for help with an addiction, which is covered under ADA. An event such as an accident at work or arrest for driving under the influence can trigger the interactive process and may be covered under the ADA.
In this instance, you may choose to put the employee on administrative leave while you seek outside legal counsel for guidance.
Summing it all up
Your goal is to help the employee get the help they need to overcome their substance abuse issues, but you are limited to conduct in the workplace.
Focus on an employee’s performance and behavior, and don’t jump to conclusions based on rumors and your perceptions. Seek outside legal counsel for guidance at every step of the process when responding to a suspected case of employee substance abuse.
The ADA is just one of many laws that govern how employers must react to certain situations. If you’d like more information on the copious laws that may impact your business, download our free e-book: Employment law: Are you putting your business at risk?