When an Employee Has a Substance Abuse Problem, Tread Carefully

Sept. 19, 2018
Address the effects the problem has on performance and behavior, rather than draw conclusions based on someone's perceived or self-claimed status as an addict.

Employee impairment from drug or alcohol use and the effects of substance addiction create significant risks in the manufacturing workplace. A momentary lapse of attention caused by impairment from illegal drugs or alcohol can result in severe and irreversible consequences: personal injury, property damage, even death. 

Meanwhile, we know that some ten million individuals show up to work battling the effects of substance abuse or addiction. And we know that, every day, some small subset of employees will show up to work impaired by drugs or alcohol. 

Like so many areas of labor and employment law, addressing impairment and substance abuse requires the employer to exercise caution. 

If there is one takeaway, it is this: Employers should generally address substance abuse by addressing the effects it has upon an employee’s performance and behavior (e.g., absenteeism, disappearance from worksite, failure to satisfy production standards). In contrast, employers should generally avoid drawing conclusions or taking action based upon an employee’s perceived or self-claimed status as an “addict” or a person with a problem. 

This article provides the basic legal framework and basic guidelines for communications with personnel who may be substance abusers. (We do not address regulated employment, such as employment involving application of U.S. Department of Transportation drug/alcohol rules.) 

Overview of Employment Law Standards Relating to Substance Abusers

Disability laws protect from employment discrimination qualified individuals with a disability, and require reasonable accommodation of protected-status employees. Those laws also specifically protect individuals who are “perceived as” disabled, whether they otherwise qualify for protection. 

While alcoholics may be qualified individuals with disabilities, current illegal drug users, aside from state law medicinal marijuana scenarios, are not protected.  (Under case law, “current” generally means a few months and even up to six months.)  Based on language in the Americans with Disabilities Act (ADA) providing that individuals who are satisfactorily participating in or have successfully completed rehabilitation are not excluded from ADA protection, courts have ruled that such individuals have a “safe harbor” and enhanced status and also are entitled to protection.

The Family and Medical Leave Act (FMLA) allows leave for eligible employees with serious health conditions. Leave for rehabilitation or treatment constitutes a serious health condition under the FMLA; thus, if an employee is otherwise eligible, in general, leave must be provided to an employee seeking leave in order to attend treatment.

Unionized employers also must assess just-cause standards when considering discipline or if confronted with misconduct that might be related to substance abuse. Under “just cause,” even if there is overt misconduct, such as a positive test result, confronting an employee with a substance abuse issue and imposing discipline may be limited (e.g., in a famous U.S. Supreme Court decision the Court upheld reinstatement by a labor arbitrator of an employee who twice tested positive for marijuana on workplace drug tests).

While employers must exercise care related to substance abuse issues, they are not powerless. When substance abuse has a workplace impact—whether the impact is on-the-job performance, behavior, attendance or any other issue—employers may hold substance abusers to the same standards as any other similarly situated employees. 

Additionally, under these laws, employers may generally: (1) prohibit use and possession of illegal drugs in the workplace; (2) prohibit working while under the influence of illegal drugs or alcohol; and (3) develop, implement and administer workplace substance abuse and drug/alcohol testing programs, subject to ADA, OSHA and state workplace testing and other applicable laws.

What to Do or Say When A Substance Abuse Issue Is Evident

First and foremost, if an employee is reasonably suspected of being impaired in the workplace, the employer should take immediate action to remove the employee from any safety-sensitive work and should investigate the potential impairment by (1) gathering evidence from supervisors (ideally trained in identifying drug or alcohol impairment) and/or (2) if law and employer policy permit, by sending an employee for a drug and/or alcohol test. 

When an employer determines an employee is impaired at work (by investigation, a drug or alcohol test, or an admission), employers may, subject to law, take action to discipline and even terminate an employee’s employment.

Alternatively, employers may impose continuing work agreements or requirements for any employee it chooses to retain. Such requirements may include directing a substance abuse assessment by a substance abuse professional (SAP); compliance with SAP recommendations relating to abstinence, education, counseling, rehabilitation, treatment or aftercare; and, if legally permitted, return-to-duty or follow-up testing.

If the issue arises through an employee voluntarily admitting having a substance abuse problem, and in the absence of misconduct, supervisors should not “agree” with the employee that he or she has a problem. Supervisors are not chemical-dependency specialists. Rather, genuine expressions of support should be offered, and contact information for an employer’s Employee Assistance Program should be provided, if available, along with information regarding available leave under the FMLA, state leave laws and employer leave policies.  (Proactive employers may also encourage such admissions by adopting an appropriate substance abuse self-disclosure policy). 

When self-disclosures are made, employers will need to assess, on a case-by-case basis, whether to impose continuing work requirements, factoring in, among other things, whether the disclosure relates to illegal drug use and/or an employee works in a safety-sensitive position.

If the concern that an employee might be an addict arises indirectly and without specific evidence of substance-based impairment—such as private or even anonymous tips of deteriorating work performance—employers should avoid direct confrontation with an employee who is suspected of or might be an addict. Employers should, again, instead focus on performance and behavior.      

When Is It OK to Discuss A Substance 'Problem,' 'Addiction' or 'Alcoholism'?

 While it is generally wise to avoid affirmatively and proactively discussing suspected substance use issues, there are times where the discussion is unavoidable.

 Under the ADA, an employer must engage in the interactive process when an employee asks for an accommodation or when the employer becomes aware of its necessity.

 If an employee claims to have an alcohol or drug problem or claims status as an addict or an alcoholic, employers cannot simply ignore the disclosure, and the information must be evaluated in context in light of basic questions: (1) did the employee violate standards of performance or behavior or test positive on a workplace test; (2) did the employee divulge the information voluntarily, without violating any rules or testing positive—and  if so. does the disclosure relate to illegal drugs or is the discloser in a safety-sensitive position; and (3) did the employee ask for help, and if so, what accommodation was requested—and was the request reasonable? 

There is no hard-and-fast rule regarding when an employer “becomes aware” of the necessity for a reasonable accommodation or what is legally required. Because these scenarios are so delicate and fact-specific, you may want to consider seeking legal counsel when the situation arises.

Dale L. Deitchler is a shareholder at Littler, representing management in all phases of labor law, labor relations and standards. Jeffrey Dilger is an associate at Littler, representing and counseling clients in a broad range of labor matters.

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