Properly documenting and handling reports of an employee suspected of impairment on the job is crucial. It can help to avoid incidents that can cause serious injury to either a member of your workforce or the general public.
If an employee is suspected of impairment what steps should managers take to document and then take appropriate action? That may be the most important question facing employers in the age of legal marijuana
In general, it is important to:
- Document all aberrant behavior as you would for any reasonable suspicion scenario and/or poor work performance situation;
- If considered appropriate, conduct a drug or alcohol test that provides a result that shows the possibility of both recent-use and usage within the past 24 hours. Keep in mind that everyone becomes impaired by drugs and an alcohol in their own unique way and timing, no two people are alike in this regard,
- When possible, conduct a true cognitive-impairment test that measures a person’s cognitive skills and/or motor skills against a benchmark unique to that individual.
The above steps will give employers enough validation (a document papertrail, a drug/alcohol test result that shows a violation of the company policy, and an impairment test result) to take adverse employment action in any legal-marijuana state.
What might be considered reasonable suspicion for drug testing?
A summary of guidelines as provided in a toolkit provided by the Society of Human Resource Management (SHRM).
Reasonable suspicion testing must be based on individualized suspicion of a particular employee, and employers need to document objective facts that would suggest to a reasonable person that the individual is under the influence in violation of company policy. Supervisors, managers and HR professionals should be trained in recognizing the signs of substance misuse in the workplace.
When an employee is suspected of being under the influence, firsthand observation should be made immediately by more than one supervisor or manager. Some examples of the signs an employer may observe are described below.
- Bloodshot eyes/dilated pupils.
- Slurred speech.
- Unsteady walk/uncoordinated movements.
- Shakes or tremors.
- Unexplained sweating or shivering.
- Fidgeting/inability to sit still.
- Sleeping at work or difficulty staying awake.
- Unusual body or breath odor.
- Deterioration in appearance/grooming.
- Attendance problems—tardiness, pattern of absences or excessive absenteeism.
Our comment: We do not suggest that an employer routinely use drug/alcohol testing to manage poor performance as we outline in this blog post.
- Decline in performance/productivity.
- Acting withdrawn from others, secretive.
- Money problems or borrowing or stealing money.
- Unexplained changes in personality or attitude.
- Sudden mood changes, irritability, angry outbursts or inappropriate laughing.
- Unexplained fear or paranoia.
- Inability to focus or concentrate.
When two or more members of management make observations significant enough to warrant reasonable-suspicion drug testing, this should be documented and explained to the employee being sent for testing.
How to Document Reasonable Suspicion
A summary of guidelines as provided in a toolkit provided by SHRM
These steps were written with the assumption that the organization has a clearly written drug and alcohol policy that includes drug and alcohol testing for reasonable suspicion.
Step 1: Receive Complaints
Managers or HR professionals do not want to send an employee for testing based on hearsay or gossip. Managers or HR professionals should take time to ask what the employee observed, when the employee observed it and if others witnessed or commented on this situation. The employer should also determine if the behavior is new or has happened in the past (possibly indicating a pattern of behavior).
Step 2: Observe the Employee
Firsthand observation should immediately be made by two members of management. The supervisor, manager or HR professional who performed the initial observation should seek a second member of management or HR to confirm initial suspicions.
Step 3: Remove the Employee from Safety-Sensitive Areas
Managers or HR staff may need to immediately remove the employee from the work area and ask him or her to wait in a conference room or an office.
Step 4: Document Observations
Both observers should clearly document their observations, including any abnormal behaviors. The observers should be as specific as possible in their descriptions but not attempt to diagnose the situation.
Step 5: Assess the Situation
After the situation has been clearly documented, managers or HR staff need to assess what they know and observed to determine next steps. If both observers witnessed behaviors that create a suspicion and the documentation supports this suspicion, then managers or HR may proceed with Step 6.
Step 6: Meet with the Employee
When reasonable suspicion testing is warranted, both management and HR should meet with the employee. Clearly explain what has been observed and documented by management and that, in order to rule out the possibility that the employee is in violation of the company’s drug and alcohol policy, the organization will send the employee for a drug or alcohol test. If appropriate, the manager or HR staff member should have a consent form available at this meeting for the employee’s signature.
Step 7: Prepare Transportation
Employers should not allow employees suspected of being under the influence behind the wheel of a car to proceed to the testing center and then home.
Step 8: Send the Employee for Testing
The manager or HR should contact the drug test facility to advise that an employee is on the way for reasonable suspicion testing. The employee should be given the number for the cab company to call after the testing to arrange a ride home.
Step 9: Wait for Test Results
The employee needs to know what to do and expect the following day. Company policy should address this situation, but if not, the employer should set a consistent practice.
Step 10: Respond to Employee’s Refusal to Take the Test
If the employee refuses to be tested, the employer should refer to its drug and alcohol policy. A policy may state that this refusal will be treated as a positive drug test result or will result in immediate termination of employment.
Step 11: Respond to Negative Test Results
If the drug or alcohol test results are negative, the manager or HR should contact the employee and return him or her to the previous job and work shift as soon as possible.
Step 12: Respond to Positive Test Results
Again, the employer must refer to its company policies and precedence. If the organization has an employee assistance program (EAP), it is a good idea to provide contact information for this service regardless of whether the individual’s employment is continued.
Our comment: As we state in this blog post assuming you have a productive employee in your workforce, it doesn’t make economic sense to terminate them if they have tested positive for substance abuse. We always recommend using an EAP program to help the employee recover from an addiction.
The SHRM article contains some excellent example scenarios. We suggest visiting the article. You must be a SHRM member to access the article. Please consider joining SHRM to access this and other valuable information to help manage your human resource needs.
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. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: firstname.lastname@example.org or the website at randisiandassociates