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LEGAL ISSUES

How to Create a Drug and Alcohol Policy
 

Your guide to crafting a drug and alcohol policy that can protect you and your employees from the destructive behavior caused by substance abuse

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While the use of drugs and alcohol may seem like a purely personal issue, the truth is that substance abuse commonly seeps into the everyday operations of most businesses. After all, those who use or sell drugs don't drop their habits once they leave home and arrive at their jobs every morning. According to a 2007 study by the U.S. Department of Labor, of the 17.4 million current illegal drug users age 18 and older, 13.1 million of them – 75 percent – were employed. By the same token, of 55.3 million adult binge drinkers, those who drink large amounts of alcohol with the intent of getting drunk, nearly 80 percent were also regularly employed. These statistics bring about the realization that it's important for companies to establish safeguards against drug and alcohol abuse in the workplace, and the following guidelines will help you along your way.

Dig Deeper: Few Companies Taking Steps to Address Drug Use and Alcohol Abuse

How to Create a Drug and Alcohol Policy: Why You Need a Policy

William Bowser, an employment lawyer at Wilmington, Delaware-based firm Young Conaway, Stargatt and Taylor, LLP, has drafted dozens of drug and alcohol policies for businesses, and says one of the most pertinent issues that companies cite when requesting his services is productivity. 'Those that abuse drug and alcohol miss more work,' he says. "You don't want people impaired at work, to the point that their ability to perform is impeded.'

Additionally, some federal and state laws require you to have a policy, Bowser says. The U.S. Department of Transportation, for example, has a comprehensive requirement for employers to have drug-testing programs for employees who operate a commercial motor vehicle. Under the Idaho Employer Alcohol and Drug-Free Workplace Act, any employer in the state who subjects a worker to a drug test must have a written policy in place beforehand. Researching these laws and tailoring your policy, accordingly, can help you steer clear of fines and potential litigation from employees because of statute breaches. On the other hand, some states allow employers to receive reductions on their workers' compensation premiums if they're enrolled in some type of alcohol- and drug-free program.

Having a drug and alcohol policy in place can also protect your company from safety liabilities. Dawn Haag-Hatterer, CEO of Consulting Authority, a company that provides human resources services to small businesses, recalls a situation involving a home improvement contractor, and how his negligence to institute a policy cost him his businesses. After a supervisor had treated an employee to alcoholic beverages at lunch, the employee was allowed to work atop the roof of a house. One nasty fall and several severe injuries later, the employee sued the owner of the company – and won.

'With smaller organizations, the typical scenario is that the company has grown rapidly, but not quit big enough to have a dedicated HR person on board,' she says. 'They don't implement a drug policy, and when somebody gets hurt on the job, the hospital checks for drug and alcohol. That's a lot of liability.'

Dig Deeper: Do I Need Workers' Compensation Insurance?

How to Create a Drug and Alcohol Policy: How to Institute a Policy

Implementing drug and alcohol tests for employees can be a touchy and even uncomfortable issue, but it's a crucial starting point for creating and unfurling your new drug and alcohol policy.

There are four basic circumstances in the workplace that warrant the use of drug testing, which should each be listed in your policy:

1) Job applicants. This is generally the area where most employers begin the process of screening. According to Bowser, it's wise to wait until you've selected the job candidate to administer the drug test – that way, you don't waste money on people you're not going to hire, anyway. This rule can also apply to current employees who apply for promotions.

2) Post-accident. If you are suspicious of the circumstances surrounding a workplace accident, testing all parties involved could clear you and your company of legal responsibility. However, make sure your policy spells out who will be tested, and when. 'This must be a defined term in your policy,' says Bowser. 'Are you only going to test when someone is injured, or also when something could have happened?'

3) Random employee testing. While random testing can help maintain a drug-free workplace, employers should keep in mind that 'random' isn't necessarily synonymous with 'surprise.' 'It doesn't mean you decide on the Friday that you're going to do it,' says Bowser. You can explicitly say in your policy, for example, that employees will be subject to a 1 in 3 chance each year of being tested. Bowser recommends hiring a third party entity to randomly draw names, to decrease the chance of discrimination accusations.

Again, this is the perfect example of why business owners should inform themselves of their state's drug and alcohol laws. Some states, such as California, completely ban random testing.

4) Reasonable suspicion testing. This situation calls for the testing of employees who exhibit reasonable evidence of some kind of drug or alcohol abuse. Bowser advises employers to provide some kind of professional training for those making the particular evaluations, so that they know what drug or alcohol abuse looks like. 'My policies contain a checklist that must be completed, of the kind of external signs typically shown,' says Bowser, 'Whether its blurry eyes or slurred speech.'

Another noticeable sign to watch for is sudden shifts in behavior, says Mari Bradford, the human resources hotline director the Sacramento-based California Employer's Association (CEA), a network of business and HR professionals. 'Missed deadlines, attendance issues, taking long breaks and lunches, and falling asleep at work are all common,' she says. '[These traits being exhibited on] Mondays and Fridays are really big signs that there might be a problem.'

Dig Deeper: What's Legally Allowed When Screening New Hires?

How to Create a Drug and Alcohol Policy: What Will Be Your Protocol?

Approaching and Reporting Employees

Now that your testing guidelines are in place, the next step should be to focus on the protocol for approaching and reporting the employees who are suspected of violating the policy. Bradford says one of the best places for employers and managers to start is to simply open dialogue with the employee.

'You should sit down with them and ask, ‘Do you have a medical condition or disability that causes you to exhibit these characteristics?'' she says. If the employee answers yes, you should discuss certain accommodations that might aid them in their job performance. Many employers include this type of question in their initial job applications. If they answer no, however, that may be grounds for you to proceed with drug testing or disciplinary action (more on this further down).

While you want to leave this kind of determination in the hands of employers, managers, and supervisors, you can also empower the rest of your workforce to report suspicious activity by creating a 'tip line' that allows them to call anonymously. Bradford says a suggestion box in the lounge or cafeteria area can be just as efficient.

Depending on what your next steps will be, you should include in your policy that all company property is subject to search, such as lockers and desks. 'Make sure they don't have an expectation of privacy,' says Bowser.

Taking Disciplinary Action

In the case that an employee does test positive for drug use, or fails a sobriety test, you need to decide what type of disciplinary action will be taken. Perhaps surprisingly, the consensus among most experts is immediate termination. 'When someone is truly under the influence of something and being a liability at work, that's definitely a terminable offense,' says Bradford of the CEA.

Though the safest, and perhaps smartest thing to do is fire the employee, Bowser says some employers opt for an alternative, such as helping the worker enroll in a drug or alcohol rehabilitation program and allowing them to return to work upon completion. This option, however, can have mixed results. 'Many times, treatment is positive, but employers are frustrated that they allow people to go through treatment, and six months later, they end up doing the same thing again,' he says.

Bowser also advises employers to be cautious when deciding upon disciplinary action, because some employees may be protected under the 1973 Americans with Disabilities Act, which prohibits discrimination against recovering alcoholics who are undergoing treatment.

Dig Deeper: A Former Addict Wants His Job Back -- What to Do?

How to Create a Drug and Alcohol Policy: Doctor-Prescribed Drugs

You should keep in mind that all drugs aren't necessarily illegal, and employees might brandish a doctor's note or prescription in order to excuse their suspicious behavior. An employee who is taking painkillers for an injury, for example, may succumb to drowsiness or other symptoms, which could affect their productivity and safety on the job. You should address such situations by including a statement in your policy that instructs employees to notify employers if they are taking such medication.

However, if you suspect the abuse of prescription drugs, the best thing to do is approach the issue as one of general employee misconduct, not drug use, says Haag-Hatterer of Consulting Authority. This way, you won't risk violating HIPAA regulations, which protect the confidentiality of employee health information. "You need to pull them aside and focus on their performance," she says, and possibly point them in the direction of an employee assistance program provided by your company's health insurer.

There have also been incidents involving the use of medical marijuana. Again, depending on your state's laws, workers may or may not be protected from termination if they are under the influence of marijuana for medical purposes. The state of Rhode Island, for example, is the only state that specifically protects employees from being fired for medicinal use, while California does not – despite the existence of Proposition 215, which allows the legal use of doctor-recommended marijuana.

Dig Deeper: What Does Medical Marijuana Legislation Mean for Employee Policy?

How to Create a Drug and Alcohol Policy: Consider Company Culture

The leniency of your policy, and subsequent disciplinary action, will also depend on the culture of your company. Some businesses, for example, have frequent events and functions where alcohol is served. If yours is one that's known to throw a mean Christmas party, you should set up some guidelines in your policy that addresses the possible situations that arise, says Bradford.

'One thing we should suggest is to place a limit on how many drinks employees can get' at these functions, she says. And to reduce any kind of legal liabilities if an inebriated employee is involved in a car accident, it may also help to always have a taxi or car service on-hand if you know alcohol will be served.

Another issue involving company culture that should be addressed in your policy is the entertainment of clients. If an employee treats a client to lunch or dinner, how many drinks are they allowed to have, if any at all? Restricting alcohol intake in these situations can help maintain your company's good reputation, and reduce the possibility of your employees returning to the workplace under the influence.

Dig Deeper: How to Limit Your Party Liability

Resources

Check out how veteran entrepreneur and Inc. columnist Norm Brodsky fared during his first attempt at instituting a drug testing policy at his company, CitiStorage.

The Institute for a Drug-Free Workplace is a non-profit organization that provides employers and employees with resources for substance-abuse detection, prevention, and training.

The United States Department of Labor contains several entities, such as the Occupational Safety & Health Administration, that can help you stay abreast of federal laws, statistics, and workplace standards regarding drug and alcohol use among places of employment.

Visit the Department of Transportation's Office of Drug and Alcohol Policy & Compliance hub for a wealth of information regarding approved drug and alcohol screening devices, return-to-work processes, and FAQ's regarding jobs that involve the operation of vehicles.

Last updated: Feb 24, 2010

J.J. MCCORVEY is a reporter at Inc. magazine, where he covers a wide range of topics, including technology and business research. He has covered metro news for The Detroit News, and his work has been featured in Men's Fitness.
@jmccorvey




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