By Tim Twigg and Rebecca Crane
Your employee is distracted and inattentive. He comes to work looking unkempt, tired, and unprofessional. His attendance has really taken a nosedive. Sometimes you think you smell an odor on him that you believe could be drugs or alcohol. You immediately think of requiring a drug or alcohol test. As far as you’re concerned, if he fails, he is fired.
When faced with an issue like this, is the solution as simple as asking the employee to submit to a test and then firing him or her upon failure? Unfortunately, today it is never that black and white.
Americans with Disabilities Act (ADA)
Here’s a little-known fact — the ADA considers some drug- and alcohol-related situations to be a disability, and therefore protects these people from illegal discrimination. To be protected under the law, the individual must be addicted to drugs, have a history of addiction, be regarded as being addicted, or be currently in, or have completed, a drug rehabilitation program, and not a “current” illegal drug user.
Unlike drug use, alcoholism is always considered a disability; thus, those who can perform their job functions are protected at all times.
Dos and don’ts of recruiting
Illegal drug use is not considered a disability. Therefore, questions (except those related to rehabilitation, addiction, or lawful prescription drug use) and tests for illegal drugs are permissible. Pre-employment tests for illegal drugs are often accompanied by a Conditional Offer of Employment letter. (Call us for a copy of Form No. 107A.)
Conducting alcohol tests at the prehire stage is not allowable. An employer should tread lightly with questions regarding alcohol use, since it could result in learning that the person has a disability, which is illegal to question at the preoffer stage.
Here are common scenarios for drug and/or alcohol testing:
Reasonable suspicion: This can occur when the employer has specific objective facts and rational inferences about an employee who the employer suspects is abusing drugs and/or alcohol.
Post-accident: When an employee is involved in an accident at work, the employer may test for illegal drugs or alcohol if there is reasonable suspicion that drugs or alcohol played a role in the accident.
Random: Employees are put on notice that they may be subject to a drug test at any time if they are “randomly” selected. There is no particular reason to subject an employee to this type of test except the employee’s name has been pulled out of a hat, so to speak.
NOTE: Not all states allow the above-referenced drug and alcohol testing.
Implementing drug and alcohol testing
The first step is to have a clear policy stating that you don’t tolerate illegal drug use, and explain the rules and consequences for violators (Call our office for a sample policy). If you don’t have a policy, do not carry out testing of employees, because it can intrude on their reasonable expectation of privacy and result in liability. Include this policy in employee manuals and handbooks, post it conspicuously, and communicate it clearly with all employees. Mention on job applications that applicants may be required to submit to drug and alcohol testing. Apply your policy consistently and keep good documentation.
After an individual has been hired, it is possible the employer will find out then that the person has a drug or alcohol problem and, therefore, the person has a disability. When that is the case, the employer has an obligation to “reasonably accommodate” the individual if necessary — i.e., anything that will allow the employee to continue performing his/her job and manage the disability appropriately without causing undue hardship on the practice.
More protections are being afforded employees relative to drug and alcohol testing, including protection under the Americans with Disabilities Act. Drug and alcohol testing is a legal minefield waiting to explode on unsuspecting employers. Caution is a must, as is seeking professional counsel before taking adverse action against any employee.
TIM TWIGG is the president of Bent Ericksen & Associates, and REBECCA CRANE is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit the website at www.bentericksen.com.
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