March 20, 2015

hand holding test tube, colorful background, illustrates employee drug testingImagine this: One day, Dr. Chin receives an anonymous voicemail saying that one of his employees has been using “zoom” before work, and that she should probably be in rehab, not working on patients. Questions flood his mind. What the heck is zoom? Is it dangerous? How much credence can I give an anonymous tip? Is that why she has been acting so jittery and erratic lately? Can I drug test her? What if I just drug test everyone? What the heck is wrong with people these days?!

Drug and alcohol abuse in the workplace is a big area of uncertainty and concern for employers. Not only is prescription drug abuse a growing epidemic, addicts of any type can be very crafty at hiding their drug use and its effects. What should you do if an employee shows up to work drunk or high? What if you only suspect your employee has a drug problem?

It may be tempting to require drug tests because you want a safe workplace and are concerned about the liabilities stemming from drug use in your office. Plus, if you have controlled substances in your office, it’s your responsibility to be careful who has access. Be wary, though: There are useful ways to enforce an office drug testing policy, and then there are less useful or even risky ways. Today’s Two Minute Trainer aims to provide practical guidance for dealing with these problems.

Drug testing an employee should usually happen in one of three scenarios. First, you can require a drug test of anyone to whom you offer employment—and you can make that employment offer contingent on passing the drug test. You would send the candidate to be drug tested at a designated facility at your cost. If you do this, it should be done consistently, for all candidates, much like a background check. Testing only some new hires could easily be construed as discrimination. Note that a successfully rehabilitated drug addict, who is not currently using drugs, is usually protected under disability protection laws.

As a second alternative, you could implement a random drug testing policy. This is a bit more complicated. This means you have to give notice to employees, and have a third party company which maintains a list of ALL employees, including all doctors, members of management, owners, and anyone on the payroll. The drug testing company will randomly pick people off the list to be tested at random intervals of time. Having this policy does not mean that you decide when you want to test an employee you think may be using drugs. But it can act as a deterrent against job seekers who are regular drug users.

The last type of drug testing is done under reasonable suspicion. This is the most common, and probably the most reasonable type of policy. This policy would permit drug testing when you have an employee who is displaying physical characteristics on the job that could be attributed to drug use, or, as in Dr. Chin’s case above, there is other evidence that the person may be impaired at work. This policy must be in writing to put employees on notice.

Physical characteristics should be objective and observable signs of impairment. This is not for the person who has been rumored to use recreational drugs off the clock. This is for the person who is displaying behaviors that are impacting job performance, and which could be attributed to drugs. Outward manifestations of impairment may include slurred speech, midday naps, jittery hands, red eyes, inability to focus, or stumbling, among other behaviors. Possible side effects are as long as the list of drugs used these days. (By the way, “zoom” is a slang term for bath salts, and not the kind used to perfume your bath.)

What to do: If you become concerned that an employee may be working at your practice while impaired, get another manager to independently assess the person, and see if you arrive at the same conclusion. Document your objective observations. Then, you’ll need to confront the employee with what you’ve observed, realizing that they may deny it, or they may have a very good reason for any strange behavior. For example, the person could have a medical condition, be a victim of domestic violence, or simply be suffering from lack of sleep. Testing in these scenarios risks breaching employee privacy, and could trigger employee protections and lead to discrimination and other types of claims. So requiring a drug test must be done with the employee’s express permission, or with plenty of reasonable indication of on-duty impairment.

The next step may be simply sending the employee home for the day, issuing a corrective action, or calling the employee a cab (paid by the employer) and sending them to a third party drug testing facility. It depends on what is reasonable in the situation.

Now that you know when to test, let’s talk about a few more specific situations. The first is the issue of legalized marijuana and medical marijuana. The questions that arise here are not really any different than those pertaining to already-legal alcohol. Even though marijuana may be legal, the employee is not permitted to come to work impaired, even in those states that prohibit discrimination against registered cardholders. If an employee comes in high, any actions you take should still be in response to objective signs of impairment, which should be thoroughly documented. This is especially true in the case of marijuana, for which you cannot determine specifically when the drug was taken—it can show up on a drug screen as much as thirty days after use.

One of the biggest concerns is if you have controlled substances in the office due to the nature of your practice. To protect your DEA license in this situation, you must establish strict security measures and have a specific protocol for what happens if drugs are discovered to be missing. You will want to designate a responsible employee to safeguard the drugs. This should be part of their job function and listed in their job description, so the individual can be held accountable if a drug goes missing.

At the end of the day, there are a number of considerations to keep in mind when dealing with drugs in the workplace, and as a CEDR Member, you will want to check in with the Solution Center in order to navigate these treacherous waters safely. Give us a call at 866-414-6056 and we can help you minimize your risks.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.