Episode 115: Drug and Alcohol Testing

Drug testing is an especially tricky to subject to navigate with your employees. If you have reason to believe one or more of your employees may be coming into work under the influence of drugs or alcohol, how should testing be handled? There should be a policy about it in your employee handbook, but how do you know if it’s legally compliant? Join Paul and Solution Center advisor Michelle Richard as they discuss how to handle this stressful situation.


Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Michelle: Hi, Paul. How you doing?

Paul: Hi, Michelle. I’m doing good. What’s up?

Michelle: Oh, some interesting stuff, Paul.

Paul: Okay, good. I love interesting stuff.

Michelle: That’s the majority of what we see in the Solution Center. It’s some interesting things. There’s never the same day in HR. But I thought today we could focus a little bit more on something that is a bit stressful for employers to deal with.

Paul: Okay.

Michelle: And that is drug and alcohol testing.

Paul: Okay.

Michelle: Now, the process itself is pretty straightforward.

Paul: Yeah, yeah.

Michelle: But the circumstances surrounding it is usually what can cloud judgement, what can bring forth that stress in you as a manager, as an owner, whoever’s having to facilitate this. So, there’s a lot of different reasons why you would drug test.

Paul: Okay.

Michelle: Or send somebody for an alcohol test. Exactly, but I wanted to focus in on reasonable suspicion.

Paul: Ooh, okay.

Michelle: So, when to send someone kind of the basics of how but then I want to talk about just some common questions we get because that’s what’s being talked about right now. Those are the calls we’re getting. So, just really focusing in.

Paul: Oh, really getting a lot of calls around this now, because I yes.

Michelle: More than now it’s not every single day.

Paul: No, I get it.

Michelle: But it’s at least personally I’ve taken a lot more calls than usual, and it could be, I mean I don’t know why.

Paul: Yeah, so that was going to be my question to you. So, I’m going to ask you, any insight as to why this this is getting these questions are becoming more frequent. It’s okay if you don’t have it.

Michelle: I don’t know the answer to that, but I will say that it seems that employees are really under a of stress. And that could be in their personal lives, when employers call in they’re usually sharing some backstory and that backstory is typically, hey, I have an employee. They’re going through it, they’re going through rough time.

Paul: We just noticed or we’re seeing what we suspect.

Michelle: Exactly. So, what I wanted to ask you Paul is if, okay, so if I come to you as an employer and I say, hey, so I heard through the Grapevine that Susie likes to party on the weekends. That she, I mean it wouldn’t be a far stretch. It wouldn’t be a reach to say that she maybe comes into the workplace under the influence. I haven’t seen it. What do I do?

Paul: Oh okay. So, there’s no apparent. So Susie’s not coming in impaired.

Michelle: Not that we’ve observed.

Paul: So nobody’s observed but now we’re saying because there are drugs in the world and Susie is in that same world then maybe we should drug test Susie.

Michelle: Yeah, can I do that?

Paul: Well, you can. You can but you probably should also drug test everybody else in the office as well. And I just want to put this out there right at the beginning. I get this question or used to get a lot when I was in the Solution Center myself. The question is we want to drug test and we just want to drug test. Everybody, I want a drug testing policy and we’re going to start drug testing and I would always ask why. Are you having a problem? And they’d say, no, no, we’re not having a problem, but I just want to know. My insurance carrier maybe has said they’ll give me a little break on workman’s comp or something like that. But I just want to know. I would reply with at that time and of course it’s kind of dates us a little bit because you’ve been around for about almost well 15, 16 18 years, something like that. Was, well, be prepared to find out that your best employee smokes pot and have to fire them for that or that your best employee does something and they perform fantastic and they’re great. But as soon as you can’t unknow it and if your policy is we drug test and we fire for people who fail drug test, then, you’re going to have fire whoever test positive. And that would kind of give a lot of people pause.

Michelle: Yeah and even though you’re saying that was the conversation you were having 15+ years ago.

Paul: Yeah.

Michelle: That’s still the conversation today.

Paul: Right.

Michelle: So, I think there’s a nice balance here where an employer should have a process. They should have a drug policy or drug-free workplace policy.

Paul: Compliant. It varies a little bit in a lot of states.

Michelle: You are exactly right. You hit the nail on the head there, Paul. So, have a policy, right. And have a compliant policy. So, that’s the main takeaway for your first step. Make sure you have a process here, but then, let’s kind of go back to the question, right. So, I gave you a scenario. Let me give you a different one.

Paul: I thought I got out of that.

Michelle: Let’s use Susie again. Yes. Let’s say, I’m coming to you as the office manager and you’re the owner.

Paul: Okay.

Michelle: Alright.

Paul: Susie.

Michelle: Okay, the Suzy man. I always use the name Suzy. I’m sorry for any Susie’s out there but.

Paul: I just Mary Beth.

Michelle: Oh, see. We all have the name.

Paul: My name is Mary Beth. We don’t have to get into why or when that occurred but yeah. Okay.

Michelle: Yeah. So, let’s say Susie or Mary Beth. Let’s say I’m the office manager here.

Paul: And I’m the doctor.

Michelle: Yes, you are. Okay. And I come to you. And I say, Hey, Doctor, Doctor Paul. I observed Susie today.

Paul: Yeah.

Michelle: She was slurring her speech. Her eyes were really, well they weren’t focused. They’re a little glazed over.

Paul: Yeah.

Michelle: She’s acting unusual.

Paul: Yeah.

Michelle: She’s acting out of her normal behavior.

Paul: Right.

Michelle: What do we do? So you call CEDR because of course right? You try to figure out what you’re going to do. Now let’s talk about how you’d handle that one because that’s going to be a little different right. As a business owner as an office manager.

Paul: Yeah.

Michelle: You’re going to handle that a little different because the difference here is that you have objectively observed behaviors. Therefore and if there’s two people there, you have a witness

Paul: Feel like you’re leading the witness right now.

Michelle: Yes, okay. Well, if you’re the witness.

Paul: You have objectively.

Michelle: Tell me a little bit about how we’d handle that.

Paul: Well, look, okay. It’s not you can’t be at work and you can’t be impaired. Whether the impairment is from legal drugs that you’ve been prescribed, you can’t work impaired or whether it’s illegal drugs or you can’t be at work impaired because your insulin’s off. I mean, again, the key here is the objective observation of the impairment. And everybody the people who are listening not all of you, so our both of our listeners both of them one’s in a medical practice the others in the dental practice. We have two listeners right now. You can’t have anybody impaired. You just can’t have anybody working impaired.

So, I would say, you have some choices. You can send someone home. You could say look you’re, hey, notice your words were slurred noticed a few other things about you. All the potato chips are missing here, so I don’t know what happened at break. That was a little joke. And so, look, we’re going to send you home and you could take that tact. You could also say, I want you to go take a drug test or just a test in general. You smell alcohol, whatever those things are. That is a little bit more of a forceful approach to take to it because most employees won’t go do the test because they know they’re impaired and then you have grounds to fire them because they refuse to take the test.

So, that’s the reason why you want the policy and you want to reach out to someone like us because we may say, look, guys, this is the third time. You don’t send them…, just send them home. Send them home, get them a lift, or call their family, or get someone to give them a ride home and also tell them that they have to go drug test.

Michelle: Yeah.

Paul: Before that they can return and they must do it today.

Michelle: Yup. Exactly. If they were impaired yesterday, you’re not sending them today.

Paul: No.

Michelle: You really need to do that the day of to make sure the results of the test are accurate, and you know that there’s a window of time for that kind of thing. So that’s more of, we like to say there’s not a ton of urgent HR matters. There’s a lot of stressful ones but not a ton of urgent. This one is. This one takes the cake on that one.

Paul: I mean if they’ve been drinking you smell the alcohol. If they’re really, something’s off about them it’s clear. You just can’t hide this stuff within a medical setting.

Michelle: Exactly, and I wanted to add one last thing. The HR magic is in that conversation. So from when you observe to when you potentially are sending them home or sending for the test have a conversation with don’t go into it in an accusatory manner. Just present what you’ve seen and allow them to explain.

Paul: What’s going on with you right now?

Michelle: Yeah. When an employee feels attacked, they’re not going to be as honest but if they feel like, okay, I messed up here and I mean, I’ve had this happen. I used to be an actual HR director before I came and was advising on this kind of stuff and I was in the middle of this stressful situation.

Paul: She is a pretty big deal. She shall not know it. This is a pretty big deal.

Michelle: On some days.

Paul: Yeah.

Michelle: Some days I’m not, but the key there though was I’ve had employees that I’ve sent one in particular I sent him. He passed it, I have no idea how he passed it.

Paul: How he passed it.

Michelle: But then a week later, same behaviors. I said, you know what? Something’s going on here, I have to send you again. And he said, Michelle don’t waste your time. I’ve been doing drugs and I’ve been doing them. I’ve been at work high. And I said, I’m sorry to hear that, and I sent him home paid for a ride I got all my ducks in a row.

Paul: Right.

Michelle: And then I had to make that tough decision and the decision was pretty straight but then I had to have that conversation with him and let him go.

Paul: Look, for safety reasons for liability reasons for all of the things for all the reasons. You have to get the person out immediately. So, it kind of, I’m a little dumbfound. So, if you’re a member or maybe even not a member, we’ve gotten calls before where we’ve not, they called us and the person came in impaired and it’s two hours later and they’re like, what should we do? Well, as soon as you think someone’s impaired, sit down and talk with them, see what’s going on, that gives you more to document the objective things that you’re observing.

Document those things and then do what we said. Get them out of there. Get them a right home. Don’t just shove them out the front door. And if you need to drug test or kind of force that then you can do it if you have the right policies in place. I think that covers it, right?

Michelle: Yeah it really does. Thanks for talking through this with me. It’s a tough one. It’s a heavy one.

Paul: It’s a heavy one.

Michelle: But yeah.

Paul: Okay. Well thanks for that What The Hell Just Happened in HR. What The Hell Just Happened is someone came in and paired and we figured out what to do about it, right?

Michelle: Yup.

Paul: Okay. Alright. Thanks.

Michelle: Thank you.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Oct 11, 2022

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 based on applicable local, state and/or federal U.S. employment law 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.

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