Developing an understanding about substance abuse and what it does in the workplace is well and good, but employers do need to take action for it. It does no one any good if they recognize the signs of substance abuse and do nothing to help the person or prevent them from injuring themselves or others at work. Many companies have policies and options for nearly everything that can happen at work, so why not include one for substance abuse?
In this article, you will learn about what options are available when approaching substance abuse in the workplace. This includes the solutions and policies that businesses can implement, as well as the legal rights of both employers and employees. Employers can use this information to create their own substance abuse policies or to update existing ones.
The use of company policies for addressing substance abuse is fairly standard. Many industries included such policies as part of their involvement OSHA's Drug Free Workplace Alliance before requirements dictated that they do so. Even the most basic of drug and alcohol policies have guidelines for things like drug testing and legal action. Staff members do not necessarily have to have these policies memorized by heart, but they should still be available for employees who need to refer to them.
Company substance abuse policies should include information on the following:
Identifying Markers--Training on the signs of substance abuse may be made standard for management staff. The policy should include information on the training, such as what it covers and how often it is offered. Some employers may want to offer refresher or review sessions to ensure that staff continue to be aware. A list of identifying markers or warning signs should be included in the policy and made accessible to employees.
Testing--There's a bit of a controversy surrounding drug testing, which will be covered in upcoming lessons. However, your company's policy should include information on any drug testing requirements. This should include when testing will be used, the testing method, and what third parties may be involved. There should also be information regarding the procedure for when employees miss a drug test, test positive, and for cases of false positives.
Reporting System--Management staff are not always going to be the ones that find instances of substance abuse at work. For employees, a reporting system may be a good idea. Even something simple like the method of reporting (email, in person, etc.) and who to send the report to could work. Employers may want to consider having an option for anonymous reporting to prevent any retaliation, or possibly establish that the reporter will not be named when confronting the addicted employee. Any reporting system should be made known and easily accessible for all staff members.
Employers who want to add to their company's workplace substance abuse policies should consider consulting with legal counsel. This can help you ensure that the policy is in compliance with the law and that there are protections in place for the company in case of mistakes. Make sure that any law offices or lawyers you consult with on this manner have experience with workplace substance abuse and is familiar with the specific legalities.
For the protection of all involved and to prevent misuse of the system, every part of a company's approach to an instance of substance abuse should be documented. This should include any evidence of substance abuse, how it was found, who is involved, and what is being done about it. Generating a paper trail throughout the process can serve as a protective measure for the company in the event of backlash from the employee. It can also help if there are any legal complications involved.
Methods of documentation can vary based on what is being recorded. Often, the easiest route is to write things down and then support it with additional evidence such as security footage or data from the person's work computer. The entire process of documentation should follow a process similar to the following:
Original Complaint--Any information regarding the original complaint that was brought to management's attention should be documented. This includes the reporter, who they reported it to, when (time and day), what triggered their suspicions, and the means of reporting. Additional supporting evidence--other witnesses to the behavior, for example--should also be recorded as part of the original complaint. If the original complaint was actually the results of a drug test, then anything related to the test results should be documented.
Observations--Before taking a complaint at face value, it is a good idea to first observe the person's behavior. This can help weed out any false or mistaken reports from actual instances. Observations should be done by management staff, not fellow employees. Consider having multiple instances of observation and a possible second staffer do their own to avoid misinterpretation and bias. Observers should look for the appropriate signs of substance abuse and document their findings in writing.
Notification and Confrontation--Management should contact both the company's Human Resources (HR) department and the person suspected of workplace substance abuse. It is best to confront the employee in person and away from the main work areas; conference rooms and offices are preferred alternatives. Simply issue a polite, firm request for a meeting to the person with details about the when and where. HR should be notified of the situation in full and employers may want to consider having a representative present when confronting the employee. Review any policies applicable to the situation, the employee's record with the company, and the documentation gathered thus far before the meeting. As some people can be in denial about their addiction, a confrontation may turn into an intervention. Do what you can to avoid creating a hostile environment; any security staff employed by the company may want to be present as a precaution.
Employer and Employee Legal Rights
As mentioned throughout this lesson, employers may want to consider consulting with an attorney about what they are legally allowed to do in the event of workplace drug use. Substance abuse can be messy by itself when it comes to the law; it can be even more so when it is present at work. There are legal rights and limitations for both employers and employees that must be considered when addressing workplace drug use. A lack of compliance for either party can result in serious consequences.
Many employers are afraid of violating laws like the Americans with Disabilities Act through their response to an employee's addiction; it's one of the most cited reasons for inaction. However, the ADA doesn't actually protect employees with addiction the way many people think. Previous lessons brought up the protections the ADA affords to past drug users, as well as those currently in treatment and recovery; it is not applicable to current drug and alcohol users. If an employee is using while at work and it's posing a threat to the safety and wellbeing of those around them, then an employer is well within their legal right to respond with disciplinary measures like termination. Employers may also refuse to hire an applicant if the person is currently using drugs or alcohol, so long as there is sufficient evidence (positive drug test, caught in the act, etc.).
Firing an employee for substance abuse, while acceptable, isn't always the go-to answer. Depending on company policies and laws on the local or state level, an employer may be expected to present the employee with a lesser punishment first. Alternatives may include suspension, fines, reimbursement for damages caused by their actions while under the influence, or other penalties. There may be a probationary period, during which the employee can attempt to seek treatment, before terminating employment.
Legally, employers may also be able to press legal charges against employees with substance abuse if they've committed a crime while using. This can include things like theft, property damage, and assault so long as it occurred on company property or the victims were the company and/or staff. It is the decision of the employer to report an employee to law enforcement for possession or use of an illicit substance and not a requirement of law. However, if an employee causes an accident or fatality while under the influence, they may still face charges for possession and use. This is usually because an official investigation found that their drug use contributed to the incident and it was included in the official accident reports made by law enforcement and other government agencies. Employee drug use in places like schools may result in criminal charges for things like child endangerment based on laws concerning drugs and places of education.
Employees do have the right to protection from discrimination based on their past substance abuse. They cannot be legally penalized for enrolling in any kind of addiction treatment programs, going to support groups, requesting assistance at work in regards to their past substance abuse issues (e.g. being excused from handling alcohol), or any other recovery behavior. It is their responsibility to disclose past substance abuse to potential employers when applying for a job; it will most likely be discovered through a background check. They are well within their right to attempt to appeal any disciplinary action taken against them for their current substance abuse at work, so long as it is through the proper channels and in compliance with laws and company policy.
When being confronted about possible drug use, unionized employees are often allowed to have a representative present. The presence of a lawyer is also acceptable, and encouraged, in some instances. Should there be sufficient evidence, both employers and employees with addiction can be held liable for workplace accidents and fatalities. Usually, this is when that particular employee is at fault and the employer was aware of their workplace drug use before the incident but did nothing.
In cases where the employee with substance abuse issues is under the age of 18, a parent or guardian often needs to be contacted. Since the employee is a minor in such a situation, parental consent may be required for things like drug testing. The parents should also be invited to be present when an underage employee is confronted about their substance abuse, as there may be extenuating circumstances such as a medical condition.
When it comes to substance abuse in the workplace, it is highly likely that mistakes will be made. Identifying employees who have used drugs or alcohol to some degree while at work means identifying and addressing errors they have made while under the influence. Regardless of how the employee's substance abuse was learned of--if they admitted it themselves, was caught using, etc.--members of management should take some time to look at their work activities. Doing so can:
Identify Missed Mistakes--Not all errors are identified when they first happen. In some cases, time can pass before there is any substantial effect discovered. As mentioned in the previous lesson, it is possible for management staff at a business to be unaware of OSHA violations until after a report has been filed. Checking for errors caused by substance abuse, once you have an idea of what to look for, can help prevent violations and additional issues in the workplace.
Apply the Correct Cause--If an addiction-related error was discovered at work, there is the possibility that the cause of it was not correctly identified. This may be the case if the substance abuse issues were not known at the time of the error. Incorrectly placing the blame for something that happened can result in unnecessary penalties, especially if things were deemed the fault of the wrong person. Significant errors--like accidents--caused by a person usually involve disciplinary actions and a record of it on their employee file that can affect them professionally for years to come. If the wrong employee be blamed and penalized for an error caused by co-worker with addiction, administrative staff should consider remedying the situation. At minimum, an apology should be given to the wronged employee and any mention of the error in their employee file should be amended for future records.
Guide Preventative Measures--Improvements to the workplace tend to involve looking at what is already in place and determining what is needed. Safety regulations and other policies are usually updated based on changes in the work environment that may pose issue. A business may not have any safeguards in place to prevent certain mistakes caused by an employee's addiction or they may not have enough. Updates do not have to be massive or expensive affairs; something as simple as training on the warning signs of substance abuse can help supervisors recognize if an employee is under the influence before something happens.
There is also the potential of mistakes made when attempting to address a possible case of substance abuse. Addiction is a serious issue and accusations of substance abuse issues should not be tossed around lightly. There are other circumstances that can present similarly to the signs of addiction, such as certain health conditions and the effects of legitimate medication usage. Even with drug testing, there are instances of false positives for illicit substances. Before jumping to any kind of conclusion, be sure to take a good look at the information you have and do what you can to check its accuracy. People misinterpret information and run with it as fact all the time; an example would be when people assume a woman is pregnant based on her appearance and then comment on it. Most of the time it's awkward, but such instances can be messy. If you, either as an employer or co-worker, incorrectly accuse an employee of being an addict and using in the workplace: own up to it. Address your mistake, correct it with the appropriate parties, and apologize. Failing to do so can affect your work relationship with the person and generate a hostile or distrustful workplace environment.