This article highlights the problems of employees returning to work after COVID shutdowns. We have sprinkled some of our previous blog posts in the summary below.
For example, one employee got used to drinking several glasses of wine during the workday when working 100% remotely for the past three years. Now, ordered back to the office three days a week, Josie’s secret substance misuse practices are becoming harder to hide.
Another employee was an outstanding employee: motivated, participative, and vocal in meetings, and highly visible within the organization. It was also no secret that Jerry enjoyed the occasional edible during non-working hours. Now that his job is 100% remote, Jerry no longer initiates contact with his colleagues, is slow to respond to messages and emails, no longer speaks during videoconferences, and he looks strangely unkempt.
What’s an employer to do?
A recent Sierra Tucson survey reported that 20% of U.S. workers admitted to using recreational drugs while working remotely and 22% of employees surveyed admitted to being under the influence during virtual meetings. A May 2022 study by the Federal Reserve Bank of Atlanta estimated that as many as 27 million working age (25–54) Americans have substance abuse disorders — a 23% rise since pre-pandemic times.
The social isolation created by the Covid-19 pandemic enhanced opportunities for workers to avoid the repercussions of using drugs or alcohol while working. With these previously undetected habits now coming to light as workers put in regular face time at the office, law firms are seeing an uptick in requests from employers seeking guidance on how to legally address such situations.
Establishing reasonable suspicion
On an individual basis, establishing reasonable suspicion is key to addressing substance abuse issues, and employers that have reason to believe an employee is under the influence at work need to rely on solid drug testing procedures that are compliant with the Americans with Disabilities Act, or ADA. [R&A comment – We wrote previously about reasonable suspicion] This means, in part, that employee handbooks and policies need to be reviewed or updated to ensure that substance abuse policies apply not just to employees working on site, but also to remote workers.
Testing for substance abuse is considered a medical inquiry under the ADA; therefore, the test must be job-related and consistent with business necessity. Reasonable suspicion that an employee is under the influence typically justifies testing, but it may be necessary to distinguish between the use of illegal drugs and alcohol because they have different parameters.
For example, according to the EEOC’s Technical Assistance Manual, employees who currently use alcohol are not automatically denied the protection of the ADA if they are qualified to perform the essential functions of their jobs. An employer may nevertheless discipline or discharge employees whose current use of alcohol adversely affects their job performance or behavior to the extent it renders them unqualified for employment. On the other hand, current illegal drug use is not protected by the ADA, even though recovering addicts are protected.
Reasonable suspicion is typically based on an articulable belief that an employee is under the influence of a controlled substance drawn from particularized facts and reasonable inferences, such as observations, a pattern of erratic behavior, a credible source independently corroborated, evidence of a tampered drug test, and a urine specimen outside the 90°-100° Fahrenheit range. Best practices suggest that two or more supervisory or management personnel should agree that such testing is called for. [R&A comment – However in this article we highlight the danger of substituting drug testing with avoiding the managing of poor performance.]
The most repeated advice for employers is to document, document, document. From company policies and employee handbooks, to corroborating witness accounts, to the employee’s response to testing and any Employee Assistance Plan, or EAP, documentation will help ensure employers are taking the right steps for action — both in testing and counseling.
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