Fighting Workplace Substance Abuse

Substance abuse is a widespread societal problem and, therefore, a problem in many workplaces. But employers' leeway to deal with the problem as they see fit is constrained by the privacy rights of employees and federal and state laws. The federal laws that most impact the issue are the Drug-Free Workplace Act, the Americans with Disabilities Act, and the Family and Medical Leave Act. There are many states and even some local ordinances, as well, that may affect how the employer may discover substance abuse and treat substance-abusing employees.

This article explains the general relevant parameters of the three federal laws and suggests some best practices in dealing with the problem of substance abuse among employees. The Drug-Free Workplace Act requires businesses holding government contracts of $25,000 or more, and institutions that receive federal grants or other forms of federal assistance, to establish drug education and awareness programs for their workers to maintain a drug-free workplace. To comply with the act, steps employers must take include

• Giving employees notice that the company prohibits the possession, use, and distribution of illegal drugs in the workplace and spell out the specific disciplinary action that will be taken against violators.
• Educating employees about the dangers of drug use in the workplace.
• Making information on counseling and rehabilitation available to employees with drug problems.
• Giving each employee a copy of the drug-free policy and requiring them to agree to abide by the policy.

The act does not, however, require any testing for drugs, but various court cases that have been filed challenging drug testing of employees provide some guidelines. Where the employee is in a safety-sensitive position, such as a train driver or security guard, courts have generally held that an employer's drug-testing program is reasonable. Drug testing of current employees not in safety-sensitive positions can be more problematic. Any positive results should always be confirmed with a second test. Results of all tests and any other medical information must be kept confidential.

Handling the Substance-Abuser

If you suspect an employee has a substance abuse problem but don't know for sure, keep your discussion with the employee on job performance. Only if the employee tells you that he or she has a substance abuse problem or if the problem is completely obvious to any reasonable observer should you mention that the company has counseling services available through your employee assistance program (EAP) or talk about outpatient and inpatient detoxification and rehabilitation programs. It's very important to document employees' performance, both good and bad so that you have a record of deteriorating performance whether due to substance abuse, or any other problem.

If an employee asks for leave to enter a residential or full-time treatment program, he or she is most likely entitled to unpaid leave under the Family and Medical Leave Act and under the Americans with Disabilities Act.

Before the employee enters rehabilitation the terms of his or her continued employment should be spelled out in an agreement signed by the employee. Typically, the employee agrees to comply with treatment rules (such as regular attendance at AA or similar meetings); to avoid any further use of illegal drugs during the rest of his or her employment; to meet regularly with EAP counselors, who may report any relapses; to submit to random, unannounced drug testing for a specified period or indefinitely; and to report to the employer any conviction for a drug- or alcohol-related offenses. The agreement should also spell out the penalties if the employee violates the agreement. Some employers allow employees a second chance at rehabilitation while others take a relapse as grounds for immediate termination. Whatever your policy, it should be spelled out, so that the employee knows from the beginning what happens if the agreement is violated.

ADA

The Americans with Disabilities Act prohibits employment discrimination against employees and job applicants who have completed or are currently in a rehab program and are no longer illegally using drugs. A rehab program can be any program that provides professional (not necessarily medical) assistance and counseling for individuals who illegally use drugs or abuse alcohol.

Since the ADA also protects people who are perceived as having a disability, employers risk violating the law if they have blanket policies against employing anyone who has a history of drug convictions, unless there is a proven job-related reason for doing so, such as a high degree of safety or security. Each applicant must be evaluated individually on a case-by-case basis.

Sadly, many people who go through rehab and can stay clean for a while relapse and then go back into rehab. There are no hard and fast rules about this under the ADA but, logically, if the person has remained employed and has relapsed, then he or she has arguably engaged in current drug use while employed and is no longer protected by the ADA, which protects only those who are no longer using illegal drugs. When this issue has reached the courts, most have said that one chance at rehab is all the employer is legally obligated to provide.

As for alcohol abuse, alcoholism is a protected disability under the ADA which means alcoholics the employer is required to provide reasonable accommodation. This does not mean, however, that the employer has to tolerate unacceptable behavior, excessive absenteeism, safety lapses, etc. An alcoholic or drug abuser can be held to the same performance standards as all other employees. If, however, an alcoholic asks for time off for treatment or other reasonable accommodation (e.g., changing a lunch hour so the person could attend a noon Alcoholic Anonymous meeting), the employer may be required to provide it.

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