• David Manes

How to handle drugs and alcohol in the workplace

There is no law that prevents an employer from regulating and combatting drug and alcohol use in the workplace. There are, however, limits on how much you can test employees for drugs. But testing is just one way, amongst many, to combat drug and alcohol use in the workplace. Let’s take a look at what an employer can do to combat drugs in the workplace.

Legally an employer is free to:

  1. Prohibit the use of illegal drugs and alcohol in the workplace.

  2. Require that employees cannot come to work or return to work while under the influence of drugs or alcohol.

  3. Require that people who use drugs and alcohol live up to the same standards as other employees.

In addition to enforcing the rules above you can perform drug tests on your employees in accordance with state and federal law. If an employee fails a drug test you are free to fire or discipline the employee.

Testing

When it come to testing guidelines they are generally state specific and can be broken down into two choices:

  1. Pre-employment testing

  2. Post employment testing

Pre-employment testing

This type of testing is usually easier to conduct from a legal standpoint than testing an employee once he is already hired. However, the laws of pre-employment testing vary widely from state to state so check your local laws.

With that said you can generally conduct a pre-employment drug test as long as the employee is notified. To ensure notification make sure you include an area on the application informing the applicant of the drug test and a signature area where they can assent to it.

Post-employment drug testing

The federal and local laws may limit the employer’s ability to test after the employee is hired, but there are a few areas where post employment testing is generally allowed: safety and security positions, when accidents have occurred, and retesting.

Safety and Security

If an employee handles a job where there is a high risk of injury to people or property you can usually require periodic testing. These areas include handlers of heavy equipment, those who carry firearms or work with explosives. You can also usually test employees who work with vulnerable groups such as the elderly or children.

Accidents

You can usually require the drug testing of an employee who has been involved in an accident where someone was injured or property damage occurred.

Retesting

Generally the testing of an employee who has previously tested positive or is in an alcohol or drug rehabilitation program is allowed.  This can occur where someone involved in an accident tested positive and then is working their way through a rehab program.

An alternative approach

Instead of firing or disciplining an employee you can always offer assistance with a drug problem, or at the very least, modify their schedule so that they can seek help on their own.

Conclusion

Generally an employer is free to discipline employees who use drugs or alcohol on the job. However, when it comes to testing there are very specific rules to follow that vary from state to state. In addition there are alternative routes to firing and disciplining employees such as employer assisted drug rehabilitation programs. In order to find out what you can do, contact a local attorney for the complete scoop.[1]


 

[1] Fred S. Steingold, The Employer’s Legal Handbook: Manage your Employees and Workplace Effectively 150-153 (Alayna Schroeder ed., Nolo 9th ed. 2009).

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