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Tackling employee alcohol and drug use

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Employers sometimes must address the use of alcohol or drugs by employees while on the job or after working hours.

Either circumstance can cause problems for employers, such as poor employee performance, absenteeism or safety issues. Employee alcohol or drug use can also expose employers to potential liability for violating an employee’s rights.

This article briefly addresses some of the issues an employer may have to consider when confronted with employee alcohol or drug use, both at work and off hours.

Routine alcohol or drug use can, but does not necessarily, amount to a disability under both federal and state law. In general, alcohol or drug use is a disability when the employee’s use is diagnosed as drug addiction or the employee is in treatment. Casual drug users or social drinkers are generally not considered disabled under the law.

Before an employer takes any adverse employment action against an employee for alcohol or drug use, the employer may first need to analyze if the employee’s use requires an accommodation for a disability. If so, the employer may need to engage the employee in an interactive process to see if the employer can reasonably accommodate the disability. Accommodation could require a period of leave from work for treatment.

The employer should also review its employee handbook or other stated workplace policies regarding drinking or drug use before taking adverse employment action. If there is an express prohibition of the use of drugs and alcohol during work hours, and the employee has been caught using alcohol or drugs at work, the company’s standard disciplinary procedures could be utilized.

The employee may then be terminated or suspended as dictated by the policy. Further, if the employee’s conduct created serious health or safety concerns, the employer may have the right to immediately terminate or take other adverse action as provided under the policy.

A potentially more difficult issue is the use of alcohol or drugs off-hours and off-site. While this is most often not an issue provided the employee’s work performance is unaffected, the off-site and off-hours alcohol or drug use can become an issue when work performance suffers. If the employer suspects drug or alcohol abuse, the employer could be on notice of the employee’s disability and obligated to commence the interactive process to accommodate the disability under both federal and state law.

As with alcohol, legitimate drug use (e.g. prescribed medication) can adversely affect job performance or cause safety issues. If an employee’s performance is affected by prescription or over-the-counter medication, disability laws could also require efforts at accommodation before the employer can take adverse employment action.

Illegal drug use can be easier for employers to address than alcohol or legal drug use. Employees under the influence of illegal drugs at work generally enjoy no disability rights. Employers usually may take adverse employment action, and can most often enforce a zero-tolerance policy.

Drug and alcohol testing is a difficult issue, and ripe for employment litigation. Employers should proceed with caution before instituting drug or alcohol testing. While generally permitted, drug and alcohol testing can be invasive and embarrassing, exposing the employer to potential civil liability simply due to the means of the testing.

Unless the type of work performed requires drug or alcohol testing (e.g. commercially licensed drivers), some employers elect to avoid random testing and test only when there is a reasonable suspicion of drug or alcohol use during the workday, or when there has been an immediate safety or performance issue, such as a recent accident at work.

Employers cannot force employees to take a drug or alcohol test against their will. However, if an employee refuses to test, the employer may take adverse employment action against that employee (e.g. termination) if so provided under the employer’s policies. But, it may be advisable for the employer not to do so, unless the employer has strong grounds supporting its decision to require testing.

Brian A. Walker represents businesses and individuals in commercial, business, employment, and real estate related litigation and transactions from the Wenatchee office of Ogden Murphy Wallace PLLC.