I don’t know if it’s the time of year or just the state of the world, but I have been receiving increased client calls about employees under the influence at work.   I thought I had written a prior article on this, but apparently not.   It consequently seemed a good time to address the issue.   

Substance abuse in the workplace is a recurring problem.   What makes it especially challenging is that in most circumstances, employees will vigorously deny their problem.   That part isn’t unique to the workplace.  Addicts are notoriously adept at hiding their substance abuse to stay afloat, and their lies can be very convincing.   Some have been doing this much of their lives.  

At the core, remember that addiction is an illness.   However, its most effective treatment can be harsh.  And many employers have a hard time making these tough calls.  

So, let’s dive in and talk about both the practical and legal issues surrounding substance abuse at work.

First, it’s important to understand the backdrop of addiction in our country.   Although alcohol consumption is apparently down in recent years, the influence of alcohol is everywhere.   And of course, it is legal for those over the age of 21.   We now have the added complication of legalized marijuana in states like California.   Add to that the prevalence of prescription painkillers and access to recreational drugs, which are more robust and addictive than either alcohol or marijuana.    

Couple all of this with the rise in mental health issues.   We are seeing higher rates of depression, anxiety, and bipolar diagnoses, in addition to all of those who remain undiagnosed.   Medication can be very effective in treating these conditions, but many also self-medicate or abuse.   I have written about managing mental health issues in the workplace, and I encourage you to refer to my past MMB articles on this related topic. 

All of that provides context for the growing issues we see in the workplace.   And it lays the foundation for the question of how best to handle these issues as an employer.   

Focusing on performance.  First and foremost, as employers, the safest and most effective route is to concentrate on the workplace behavior.   As much as we may care about our employees and even have personal relationships with many of them, we are not their parents.   We are not their friends and family members.   Our job is to focus on the performance of our employees because that is our role in their lives.   Continue to hold your employees accountable.   Don’t let their attendance continue to slip.   Don’t look the other way on their sloppy mistakes.  Doing so is not being kind to them.   It is enabling their continuing problematic behavior.    

Drug and alcohol testing.  Even employee friendly California permits drug and alcohol test testing based on reasonable suspicion, so long as an employee has been put on notice of such a policy in order to temper the expectation of privacy in the workplace.  That can easily be done by way of an employee handbook.   Any of you who have our standard employee handbook have such a policy included, just in case.   

Once you have distributed such a written policy, you may require your employees to undergo a drug or alcohol test, at your cost and at a clinic of your choosing, so long as you can articulate that reasonable suspicion that the employee is under the influence at work.   The test should be conducted at the time your reasonable suspicion occurs.   Not two days later, when your supervisor tells you.   Not weeks later, when your employee reports an earlier workplace injury.   If you have missed the window, that window has closed.   

You can use workplace accidents as part of your reasonable suspicion criteria, but again, focus on the employee behavior.   If one employee drives a forklift into another employee, test the driver, not the employee who happened to be hit.  Using an injury as automatic grounds to test can violate California Labor Code Section 132a as discrimination based on a workplace injury or illness. 

If you do have the opportunity to send an employee for a drug or alcohol screen, make sure you are transporting them.   Do not put an employee you suspect of being under the influence behind the wheel of a car.   Have someone transport them.   And then drive them home. 

For those of you who do not regularly engage in drug testing, the time to forge a relationship with a local clinic is now, before you have this situation arise.   You don’t want to be scrambling to find this facility with an employee passing out in your office.  

If you have an appropriate policy, and the employee has signed the consent form, you can use the results of the drug or alcohol screen as a basis for termination.   Do keep in mind that many substances will provide false positives.  Others are much more ephemeral and can leave the system very quickly. Marijuana, whose off-duty use is now legal, can stay in the system for weeks.   Drug and alcohol screens are not the perfect solution.   However, in many cases, employees will refuse the screen, knowing what the results will be.  You can use their refusal as a basis for termination as well.  

Confronting employees about their possible substance issues.  Sometimes circumstances warrant confronting an employee about their potential substance issues.    We may have a series of performance issues, or perhaps there was a specific incident, but the timing is wrong to require a drug screen.    There are several ways in which to manage these situations, including providing a final warning or offering a leave of absence.   Again, remember that most addicts will vehemently deny there is a problem.  Document all these conversations.    

Leaves of absence.  The overlay of substance abuse with an employee’s right to a leave of absence is tricky.   While having a history of addiction is considered a disability, current users and abusers are excluded from the protections of the ADA and FMLA.   California law does provide for a specific leave of absence to participate in a rehabilitation program, but even this leave does not prohibit employers from taking action against an employee for current misbehavior.   Again, timing is everything with these issues.   You can also require proof of participation and completion of these rehabilitation programs as a condition of the leave and return.  And many programs are now covered by insurance.

Also, don’t confuse AA or other support programs with a formal rehabilitation program.   The leave of absence is to participate in an inpatient rehabilitation program.   Support groups are not substitute for rehab.  

Tough love.  As I said at the start, these issues are often complicated by our compassion for our employees.   But continuing to give an addict extra chances or looking the other way at their problem behavior does not help them.   More importantly, for your purposes, it can expose you to liability.   I have often told clients the sad story about one employer who retained an employee who was clearly battling alcoholism.   It was a long-time manager, and my client felt bad cutting him loose.  Unfortunately, one day, the manager ran an errand at lunch and hit a young kid on a bicycle.   

That story tells it all.   

As always, reach out as needed.  Managing the intersection of addiction and work is tricky stuff.   It’s what we do.