How does an employer handle a potential issue where an employee is suspected to be using illegal drugs?
While you would want to have “just cause” or reasonable suspicion prior to “accusing” an employee in this case, nothing bars you from having a conversation about observed behavior in the work place. Exercise caution as to the business necessity, in the event a prescription medication may be at cause, as this can be covered under the Americans with Disabilities Act (ADA).
Reasonable suspicion is not merely rumor or speculation but rather based on specific, objective facts and rational inferences from observing an employee’s behavior. Specific objective facts and rational inferences drawn from those facts must justify reasonable suspicion. Evidence sufficient to justify reasonable suspicion does not need to rise to the level of full probable cause. This may include alcohol on the breath, lapses in performance, inability to appropriately respond to questions, and physical symptoms of alcohol or drug influence.
According to various sources, examples of drug and/or alcohol abuse include, but are not limited to, the following signs:
- Odor of alcohol
- Odor of marijuana
- Slurred speech
- Fast speaking out of the ordinary
- Flushed, swollen face
- Red or runny eyes or nose
- Pupils dilated or constricted, or unusual eye movement
- Lack of coordination
- Tremors or sweats
- Weariness, exhaustion
- Sleepiness, or unusual hyper action
In reference to testing for substances based upon this, even with an accumulation of facts and rational implications to be used for conducting a “reasonable suspicion” test, it can be dangerous for the employer to order an employee to submit to drug testing. It is wise to have two separate witnesses to the behavior, including a supervisor; to have all supervisors trained to detect signs of usage (this does not have to be a certified training); and to escort the employee to and from the lab involved. Important to note, is that the employer must have a substance abuse plan and policy in place before taking any such action related to testing.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.
