Legal Advice: Substance Abuse

Substance Abuse
Is Your Company Policy Up-To-Date?

By Audrey J. Aronsohn

The dangers of substance abuse are well-known. Nationwide, employers lose thousands of work hours every year due to drug- and alcohol-related ailments. In addition to the health hazards, substance abuse in the workplace hinders morale, judgment and safety, and frequently contributes to discrimination and harassment claims. What is an employer to do?

IT IS CRITICAL FOR EMPLOYERS to create written policies regarding alcohol and drug use. The policy should be written plainly and given to every employee, and should answer the following questions:

• What is the purpose of the policy?
• What behaviors are expected from employees?
• Exactly what substances and behaviors are prohibited?
• What will happen if the policy is violated?
• What is the procedure for determining if an employee violated the policy?
• What efforts will the company put forth to help employees comply with the policy?
• How will employee confidentiality be protected?
• How will fairness and consistency be maintained?

Train Supervisors

Barring the raging alcoholic, pill popper or cocaine user, substance abuse in the workplace can be more subtle and insidious than many employers are trained or equipped to handle. Knowledgeable supervisors are the key to making your workplace substance abuse policy work. It is imperative to train supervisors to develop and communicate objective job-performance standards for their employees; to observe and document unexplainable deteriorating work performance and/or incidents of unsatisfactory behavior; and to recognize the unusual behavior and physical symptoms of a person under the influence of drugs.

Though some of the following behaviors can be attributed to situational stress, or other emotional and/or psychiatric complications, some of the potential identifiers of substance abuse can include:

• Extensive job history that reflects frequent job changes
• Absenteeism
• History of disciplinary actions
• Change in work productivity
• Poor interpersonal or strained peer relations
• Visible changes in demeanor and hygiene
• Mood swings
• Impairment in motor skills
• Slurring of speech
• Increased agitation or lethargy
• Anxiety or extreme restlessness
• Grandiose or paranoid behavior

Educate Employees

A drug and alcohol education program is an efficient approach to providing employees the information they need to fully understand, cooperate with, and benefit from their company’s drug-free workplace program. At a minimum, the program should include information on:

• How alcohol and other drugs affect productivity, work performance, healthcare costs and accident rates
• The health effects of drugs or alcohol
• Types of help available for individuals with alcohol- and drug-related problems, either through the organization or community-based service providers
• Testing procedures (if employee testing is part of the program), with special attention to the consequences of testing positive and procedures for ensuring accuracy and confidentiality

To be effective, an education and awareness program must be ongoing and delivered through a variety of means, not as a one-time effort. Policies should be communicated through briefings and notices in company newsletters, paycheck envelopes and bulletin boards.

Employee Assistance Program

Establish an employee assistance program that provides counseling and referrals, to be operated by the company’s staff or a contractor. The program should be operated in a confidential manner.

Alcohol and Drug Testing

Establishing a testing program can be complex, so this is usually considered the final stage of a comprehensive policy. If a testing policy is implemented, it must meet statutory or regulatory requirements, disability-discrimination guidelines, collective-bargaining agreements and other requirements.

In conducting drug testing, employers must reconcile liabilities due to lawsuits (such as those brought by employees who declined to take the test or were terminated or disciplined for positive test results, or applicants who were never hired because of results) against the safety of customers, coworkers or members of the public who may suffer injury by a drug-influenced employee.

Courts are imposing tremendous liability on companies who do nothing or do the wrong thing in face of clear evidence of drug or alcohol abuse. Many states have drug-testing statutes that provide guidance. It is important employers determine what laws exist in the states where they do business to ensure the testing rules and procedures established are in compliance with state and local regulations.

Conclusion

Substance abuse is a serious problem in the workplace. To combat this problem, employers are implementing and enforcing substance-abuse policies, the value of which should not be overlooked. A compliant drug policy is an effective means to work toward a drug-free workplace and the benefits— tangible and intangible—are real.