We often get requests from clients who provide an example of workplace impairment they’ve witnessed. Then they tell us they want to send the employee for a drug test in the hope of getting a positive result without a documented observation. Some supervisors see poor performance in the workplace and believe substance abuse is the culprit. They also believe that acquiring a positive drug test result is easier than addressing an employee’s performance.
We have written before about the mistake of using a drug test to address workplace impairment here. Hoping for a positive drug test is not the best method of addressing poor performance. An employee’s performance level should be addressed prior to any accusations of substance abuse.
That being said, employers should also have the tools they need to remove workers who pose a threat to fellow employees and community members. If you see workplace impairment, it should first be observed and documented by two separate managers. All businesses should follow this practice.
The following sample template from the state of New Jersey may prove helpful if this is an issue you’re facing at your organization. Morgan, Lewis & Bockius LLP wrote an excellent article on managing cases of workplace impairment. The piece contains a reference to a sample reasonable suspicion observed behavior report. Examining this template is an excellent way to see what proper documentation looks like. While it refers specifically to the environment in New Jersey, it still contains valuable advice on steps all employers should take to address workplace impairment.
Listed below are the main points of the article that we believe will be of value to your company. We encourage you to read the article in its entirety to obtain a full and clear understanding of the documentation process.
On September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJCRC) published its “Guidance on ‘Workplace Impairment’.” Here are a few major takeaways you should consider:
- Know the law before you take adverse action against an employee solely because cannabis metabolites were found in their system. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act prevents employers from doing this. In the state of New jersey, adults aged 21 and up are legally allowed to use cannabis recreationally.
- In some cases, adverse action may be appropriate if cannabinoid metabolites ae found and evidence of workplace impairment has been properly identified and documented. Again, it’s important to refer to the laws in your state to come to the correct conclusion. Instances of workplace impairment should likely be documented via a Reasonable Suspicion Observation Report, however.
- Complete a Uniform Reasonable Suspicion Report. The NJCRC provides a sample Reasonable Suspicion Observed Behavior Report form here. In addition to cannabis use, this sample is can be utilized for other purposes.
- It’s important for employers to develop and maintain a “Standard Operating Procedure” for workplace impairment. This should include the process for completing the Reasonable Suspicion Observation Report mentioned previously.
Steps Employers Should Take in Regard to Workplace Impairment
Employers should follow these steps to improve their procedure for identifying workplace impairment:
- Create a Reasonable Suspicion Observation Report and a Standard Operating Procedure that suits your industry.
- Train fellow employees who can follow the procedure and identify suspected cannabis use in the workplace. Alternatively, you may want to refer to an unbiased third-party contractor.
- Maintain your policies and keep them updated over time. Be sure to train all supervisors and human resources team members so they know what steps to follow.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about workplace impairment, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: firstname.lastname@example.org or the website at randisiandassociates.com