When the firm suspects a staffer of alcohol or drug abuse, an overriding concern is how to address the issue with that employee, says Jeffrey M. Schlossberg, a partner and chair of the employment law group at Ruskin Moscou Faltischek in Uniondale, NY.
The wrong words can open the door to a discrimination claim.
Don’t mention the obvious
Whenever there’s suspicion of an alcohol or drug problem, the first line of defense is not to mention alcohol or drugs at all and focus solely on performance.
That’s where offices most often get into trouble, Schlossberg says. They suspect abuse “and infuse that into their analysis.”
Watch out.
In some situations, the Americans with Disabilities Act protects people with alcoholism and in some states provides even broader protection. Similarly, an employee taking narcotics could have ADA protection because of an illness that necessitates the taking of specific drugs.
Thus, if the administrator brings up the suspicion of alcoholism or drug use and later fires or demotes the staffer, the firm could see a discrimination claim.
People know not to say, “Your hair is thin so you must have cancer.” But they aren’t always aware that the same applies to other situations. To say, “It looks like you’re drunk” or “It looks like you’re taking drugs” can be seen as the equivalent of saying, “It looks like you have a disability.”
And under ADA guidelines, disability protection applies if the office perceives an employee as having a disability.
Talk about the job instead
When there’s suspicion, look at job performance and nothing more. Ask, “What is it this employee is not doing?”
The staffer may be coming to work late, not submitting reports or sleeping at their desk. Talk about that. Any job requirement that isn’t being met is something the firm can, and should, address.
Schlossberg adds, however, that there’s no need to be a therapist or private investigator. As far as employment goes, it doesn’t matter if someone is on drugs or not. The question is whether that person is or isn’t doing the job. If the person’s performance isn’t what’s required, there’s no need to know the why of it.
No matter what disease or disability an employee has, “Nobody is excused from not performing the job properly.” Address performance alone and there can never be any argument of discrimination.
Not without a hitch, however
Even so, nothing is failsafe.
What if the staffer comes back and says, “The reason I’m not coming in on time is that I have alcoholism.” Or maybe the staffer is taking narcotics lawfully to treat a medical condition.
Now the office is on notice of a protected condition and in some situations could be required to make a reasonable accommodation.
An overall policy
What about immediate firing for alcohol or drug use in the office?
That’s permissible, Schlossberg says.
However, there’s no law that prohibits drinking on the job, so for protection, the firm needs a policy forbidding alcohol and drug use at work.
With policy in hand, the administrator can say, “You were drinking on the job and that’s a violation of our policy,” and the firing can in no way be related to a disability.
What about drug testing?
Can the firm require testing when someone is suspected of illegal drug use?
“It depends on what the facts are in the workplace,” Schlossberg says. And there’s argument against it.
The office “is not the police or the district attorney” who needs that information to prosecute a case. It doesn’t need to know about anything except performance. If there are specific things such as tardiness or mistakes, there’s no need for a test. Terminate the employee for inadequate performance.
Another argument against testing is that it could unearth information the firm doesn’t need to know about—for instance, that the staffer is taking medication for cancer or HIV.
There are, however, circumstances that can make drug testing necessary. A medical office, for example, has to ensure the safety of its patients. The same is true of a manufacturing plant where employee safety is at issue. When safety is a concern, drug testing is appropriate.
But even with those types of jobs, there needs to be caution, Schlossberg says.
There needs to be a written policy saying the office can require drug testing at any time and for any reason. Then—as long as the testing isn’t based on race, age, gender, or protected circumstance—the office is free to test.
In addition, a third party should do the specimen collection and testing. Otherwise, there’s the possibility the employee will claim the results were manipulated.
Responding to a complaint
One last question is how to respond when a staffer comes to the administrator with a suspicion that someone is abusing alcohol or drugs.
Find out the facts, he says. Ask, “What are you basing this on? What did you see? What did you hear?” If it turns out the staffer used illegal drugs at their desk, then that warrants immediate termination.
But if the staffer was drinking vodka before coming to work, stay on the safe side and go into the “how-is-this-affecting-the-job” mode.
There’s no law that says employees can’t drink outside of work. Performance is what counts. If the employee is falling asleep at the desk, it makes no difference if it’s because of fatigue or because of drunkenness. Discipline is warranted.