An article written by Employment Law Partner Daniel M. Lieberman, Esq. discusses the need for a comprehensive Drug and Alcohol Policy to maintain a safe and productive work environment and reduce avoidable legal liability and financial loss.

An accompanying podcast featuring Employment Law attorneys Jim Devine and Caitlin Donahue.

PODCAST – Drug and Alcohol Policy (Jim Devine and Caitlin Donahue)

Introduction

Keeping the workplace free from drugs and alcohol, as well as ensuring that employees do not appear for work under the influence of either, are vital components to maintaining a safe and productive work environment.  According to the U.S. Department of Justice, the major effects of alcohol and drug abuse in the workplace are inefficiency, increased turnover rates, absenteeism, and accidents.  A comprehensive policy, enforced by consistent procedures, is key to reducing and potentially eliminating avoidable legal liability and financial loss.

The Law

While there are few state requirements addressing private employers’ obligations surrounding drugs and alcohol at work, there are numerous federal laws and regulations, such as the Drug-free Workplace Act of 1988 and the Motor Carrier Safety Improvement Act of 1999, mandating specific address of these substances at work.  By extension, several provisions cover (1) private employers with federal contracts over a certain value; (2) companies who receive federal grant money; and (3) those industries in which the government has oversight through agencies such as the Department of Transportation, Department of Defense, and Nuclear Regulatory Commission.

Even if an employer is not subject to any specific government mandates or requirements, the legal liability faced by an employer turning a blind eye to drug and alcohol use could be dramatic.  An employer may be held financially responsible for injuries caused by employees under the influence of drugs or alcohol, even when the employee is not acting within the course and scope of employment.  In the case of Otis Engineering Corporation v. Clark, an employee with a history of drinking alcohol at work appeared for his shift intoxicated.  His employer sent him home, but on his way, he was involved in a fatal motor vehicle accident.  Although the employee was not furthering the interests of his employer at the time of the collision, the Court found the employer liable since it did not take necessary steps to ensure the employee arrived home safely.

Unfortunately for employers, addressing these issues is not as simple as terminating any employee who tests positive for drugs or alcohol.  The Americans with Disabilities Act and the Family and Medical Leave Act provide protections to employees with drug or alcohol addiction in certain circumstances.  Specifically, the ADA covers individuals (1) who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs; (2) who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and (3) who are regarded, erroneously, as illegally using drugs.  Moreover, individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic, as courts have often held that alcoholism is a covered disability.  Moreover, absences for treatment of these conditions may qualify as protected leave under the Family and Medical Leave Act.  The advent and increased prevalence of Medical Marijuana further complicates the employer’s responsibilities, obligations and requirements when dealing with such substances.

Drug and Alcohol Policy

An effective Drug and Alcohol Policy has several key components.  Below is a list of crucial aspects of an effective policy:

• Written Policy:  This policy should be written and remain available to employees at all times.
• Language Availability:  If necessary, this policy should be available in multiple languages.
• Statement of Purpose:  The policy should clearly outline the mandate for its workplace to remain drug and alcohol free for the health, welfare and safety of its employees, customers, and third parties.
• Zero Tolerance:  This policy should inspire a zero-tolerance culture.  A zero-tolerance culture means that the employer will take immediate action in the event of a policy violation to ensure its workplace is free from illicit substances. 
• Types of Testing:  The employer must determine what types of testing it will implement and enforce, including pre-employment, post-accident, reasonable suspicion and random.
• Testing Procedures:  It is vital that the policy clearly outline the specific process that will occur should someone be sent for testing.  Coordination with the actual specimen collection facility is key to ensure that the policy accurately reflects the testing protocol utilized by the facility.
• Consequences:  The potential disciplinary action for appearing for work under the influence, using drugs or alcohol on the premises, refusing to be tested and/or testing positive should be unequivocally stated in the policy.
• Employee Assistance Program:  To ensure compliance with the ADA and FMLA, where applicable, the policy should outline steps employees should take for self-identification and use of any company resources such as an EAP which may be available.

Analysis and Conclusion

The use of drugs and alcohol by employees can negatively affect nearly every aspect of a company’s business.  To the extent an incident occurs that requires an analysis of the company’s address of these issues, the initial inquiry will be squarely centered on the company’s policy.  Therefore, it is vital that employers maintain an effective Drug and Alcohol Policy and engage in best practices to mitigate adverse consequences.

If you have any questions or are in need of assistance in updating your Employee Handbook, please contact Dan Lieberman, Esq. at dlieberman@c-wlaw.com or 1-888-488-2638.

Disclaimer

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.