Loyola University Chicago School of Law, JD 2017
Drug and substance abuse has become an epidemic in the United States over the past 15 years, reaching an alarming 9.4% of Americans ages 12 and older in 2013. The human and economic costs of substance abuse are astonishing – some estimate the cost of tobacco, alcohol and illicit drug use may be upwards of $700 billion annually due to crime, health care and lost work productivity. However, many of those costs may be mitigated by maintaining proper policies and procedures that address a desire for a drug free workplace, proper documentation, drug testing, fit for duty testing and access to assistance.
Impairment in the Workplace
Substance abuse certainly does not evade the work place. In fact, according to the Substance Abuse and Mental Health Services Administration’s (SAMHSA) 2013 National Survey on Drug Use and Health, 68.9% of the approximately 22.4 million illicit drug users aged 18 and older were employed either full time or part time. The same survey revealed that 76% of the 16.2 million adults classified as heavy drinkers (defined as having five or more drinks on five or more days in the past 30) were employed.
Alcohol and drug use in the workplace may result in a wide range of issues including:
- lost productivity and preoccupation
- tardiness, absenteeism, and sleeping on the job
- injuries and fatalities
- higher turnover
- poor decision making
- low employee moral
- legal liabilities (disclosure of protected information, tort liability, workers’ compensation costs), and
- increased health care costs
For these reasons, it is vital to understand how to identify, respond, and prepare for substance abuse in the work place while ensuring a safe work environment and avoiding potential liabilities. But these policies must also be crafted to comply with state and federal law. Underdeveloped or inadequate policies could open the door to potential claims of discrimination, invasion of privacy, HIPAA violations, defamation and wrongful discharge. As an example, a recovering alcoholic or addict may be considered to have a protected disability under the Americans with Disabilities Act (“ADA”).
While state laws vary, when drafting and revising policies and procedures, your compliance and legal teams should be familiar with applicable federal laws like the Drug-Free Workplace Act of 1988, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1964, the Health Insurance Portability and Accountability Act (HIPAA), and the Family and Medical Leave Act of 1993.
Developing Policies and Procedures
A well prepared organization has a number of different tools at its disposal for dealing with impairment at work, which may include:
- Policy on drug free work environment. Drug Free Workplace Policies are designed to provide a safe workplace, discourage alcohol and drug abuse, and encourage treatment, recovery and the return to work of those employees with abuse problems. This policy may also be used as an opportunity to provide employee education and supervisor training to build a safer work environment. The Department of Labor (DOL) has a Drug Free Workplace Advisor which can help you build a policy.
- Suspected impairment checklists and documentation procedures. Creating a checklist can assist with proper documentation when an employee appears impaired. Checklists can also help assure thoroughness and continuity. Evaluation and documentation of suspected impairment should take place in the presence of a witness whenever possible.
- Policy on drug testing. A drug testing policy may be incorporated into the employee handbook, the Drug Free Workplace Policy, or the policy may be a standalone. It is important, however, to ensure employees are informed of when they may be required to complete a drug screen, where they will complete the screen, what drugs will be tested for and the consequences of a positive screen.
- Fit for duty testing. Fit for duty testing provides a mechanism for assessing whether employees’ conduct or behavior may pose a threat to themselves, other employees, or the public, or interfere with the company’s ability to provide services. The policy should address the supervisor’s role in determining whether testing should be ordered as well as provide the employee with information regarding evaluation procedures, rights, and additional resources.
- Employee Assistance Program (EAP). An EAP is a voluntary, confidential program that helps employees and management work through personal and/or work-related concerns, such as stress, financial issues, legal issues, family problems, office conflicts, and alcohol and substance abuse. EAP services may include assessments, counseling, and referrals for additional services to employees with substance abuse concerns. Some EAPs may also offer hotline assistance.
When developing or updating your company’s policies and procedures related to impairment in the workplace:
- Ensure the drug-free workplace policy is clearly written and easy for employees to understand. The repercussions of a positive drug test and subsequent actions should be clearly stated in writing.
- Ensure all employees sign documentation that they have been provided a copy of the policy, given an opportunity to ask questions and that they understand it.
- Ensure employees understand when they will be subject to drug-testing, whether randomly, after any accident, reasonable suspicion, etc., and what the testing process involves.
- Ensure employees know what reporting procedures are available if they suspect a fellow employee of being impaired at the workplace. Assuring reporting employees of confidentiality or providing an anonymous tip line may encourage reporting sooner.
- Ensure any suspected employee substance abuse problems are adequately and appropriately documented. Documentation should be completed with a human resources representative, if possible, or a supervisor. Document the facts only – the observations made by your and other employees. For example, documenting “slurred speech,” “delayed reactions” or “smelled alcohol on his breath” is better than “he was drunk as a skunk at work wandering around like an alcoholic.”
- Make sure that all employees are treated equally when substance abuse issues are addressed and that one particular group of employees is not singled out for increased scrutiny.
- Be familiar with the facility that performs the drug testing. Ideally this facility is close to the work site such that employees can be tested in a timely manner. If you suspect impairment, do not let the employee drive himself to the facility. Arrange for transportation via taxi or a staff member.
- Answer all employee questions regarding policies and procedures in a timely manner and make resources on stress management and addiction available at all times.
- Remember substance abuse and addiction affect more than just the individual. If possible, be prepared to offer services or resources to other employees affected by the impaired employee.
For additional recourses including web-based training, FAQs, guidances and more visit the Drug and Alcohol Testing Industry Association (DATIA), the Substance Abuse Program Administrators Association (SAPAA), the U.S. Department of Transportation’s Office of Drug and Alcohol Policy and Compliance, SAMHSA’s Workplace Helpline, the Employee Assistance Professionals Association (EAPA) and the Employee Assistance Society of North America (EASNA).