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By: Sarah Zasso, SHRM-SCP, SPHR

February 16, 2017

A client called me last week and stated that they thought an employee was drunk at work.  They said that the employee seemed “out of it” and smelled of alcohol.  My client’s question was, rightfully so, “What do we do?”

Below are some general guidelines regarding how to handle employees who appear to be under the influence (drugs or alcohol) at work.

First and foremost, do not take any action before contacting your Human Resources department.

[Note:  Use your best judgement if there is a safety concern.]

In any case that you believe an employee is under the influence at work (drugs, alcohol, prescribed medication), do not accuse the employee.  Accusations like that can not only get you in potential legal trouble, but create a divide between the company and the employee – especially if you are wrong.

The employee may be on medication (which should be addressed, but not necessarily penalized), may have had a late night and didn’t have a chance to clean up before work, or maybe their mouthwash is just really strong.

The manager’s role is not to diagnose or assume, but identify behavior and take action according to policy.


Do you have a Drug/Alcohol Workplace policy?  If so, always follow your own policy.  Most polices have a “Reasonable Cause” section which informs the employee that you will require alcohol or drug testing if you believe an employee is working under the influence.

[Note:  If you do not have a written policy, you may (with caution) still proceed with drug testing (with the employee’s consent) and/or hold your employee accountable, but a policy is always recommended for informational, consistency, and legal liability reasons.]


I recommend to ALWAYS have two individuals (management, not peers) independently observe and document the employee’s behavior.  You should have a Reasonable Suspicion Form available to document the behavior and observations.  According to the Society for Human Resource Management (SHRM), you should look for:

  • Odors (smell of alcohol, body odor, urine)
  • Movements (unsteady, slow, fidgety, dizzy, imbalanced)
  • Eyes (dilated, constricted, glassy, bloodshot)
  • Face (flushed, sweating, confused, blank look)
  • Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts)
  • Emotions (argumentative, agitated, irritable, drowsy)
  • Actions (yawning, twitching)
  • Inactions (sleeping, unconscious, no reactions to questions)


After the employee has been observed, the individuals who observed the behavior should compare notes and assess the situation to determine if they believe there is reasonable cause for testing.  One checkbox on the behaviors/observations listed above does not usually warrant reasonable cause testing.  Although there are no specific guidelines on how to determine if an employee is under the influence – use your experience, knowledge, and best judgement.  I recommend having a standard procedure that states how many behaviors (ex., 4) result in testing.  This ensures consistency when applying the policy.

[Remember, safety first.  For example, if an employee is a bus driver and there are suspicions that they might be under the influence, do not let them drive and put themselves and/or others in danger.]

  • If both agree based on the observation/policy that the employee is under the influence, they may proceed to the reasonable cause drug test (more on that below).
  • If the observers disagree, a third party should observe to help make a determination.
  • If both agree based on the observation that the employee does not appear to be under the influence, do not send them for testing. Rather, monitor the situation.  Depending on what was observed, it may be appropriate to have a conversation with the employee to make sure they are ok to continue their workday.

Do not discuss concerns about the employee’s behavior with the staff (ex., “Hey, have you noticed John Smith acting funny today?  Do you smell alcohol?”), this should be treated confidentially, as long as it is realistic/reasonable to do so.  Discussing with the staff is unprofessional, creates gossip, and could potentially expose the company to legal liability.

Meeting with the Employee/Consent

When meeting with the employee, there should be three people in the room (employee, manager, human resources).  It’s important not to accuse the employee.  I recommend starting the conversation with, “How are you today?” and maybe adding, “You seem a little off today, is everything ok?”  Explain to the employee what has been observed and documented by management, as well as why it is important (safety issues, care about the employee, etc).  The manager should then explain that they want to rule out the possibility that the employee may have violated the Drug/Alcohol Workplace Policy, by sending them for drug/alcohol testing.  The intent of approaching the testing in this manner, is to show that you are not accusing the employee and have not jumped to conclusions.

[Note: if during the initial part of the conversation, the employee shares a legitimate explanation, the employer does not have to send for drug testing.]

If you have the policy in your handbook (consenting to the policy with a signed handbook acknowledgement), you do not need them to sign another consent form, but that is always helpful.  If you do not have a policy, make sure you have the consent form available for the employee’s signature.  The employee should then proceed to complete the drug/alcohol testing.


If the employee refuses to submit to the testing, refer to your policy.  Most policies treat refusal as a positive result, which usually results in termination.  If the employee refuses a ride home or a cab, and insists on driving – you should take down the employee’s car and license plate information and notify local authorities to report your concern that someone is driving under the influence.


Although it should go without saying, do not let the employee drive themselves to the drug testing facility or home (yes, it has happened).  Ideally, a manager or a representative of Human Resources should drive and escort the employee to the testing facility, and home.  If not possible, you may coordinate with a local cab company.   All transportation fees are paid by the employer.

Pay & Results

The employee should not return to work (recommend paid leave for non-exempt, required to pay for exempt) until the results are received.  If the results are positive, discipline the employee according to policy.  If the results are negative, allow the employee to return to work.  Do not apologize for submitting them to drug testing, make sure they understand that you were concerned for their health and safety, as well as others.


This article is for general information purposes only.  I am not an attorney; accordingly, the information presented is not legal advice, and is not to be acted on as such.

About the Author

Sarah Zasso is the Owner/Principal HR Consultant of Sabeza HR (, a Human Resources Consulting company.  Sarah has achieved both the SHRM-SCP and SPHR certifications and earned a Bachelor’s degree in Organizational Leadership and Communication.  With almost 15 years of Human Resource experience, she has worked with a wide variety of industries including retail, restaurant, office, manufacturing, banking, hospitality, and healthcare.  Sarah has served on the board of the SHRM affiliated Coastal Organization of Human Resources since 2015 and has been elected President for 2017.  Sarah is a highly focused and energetic Human Resources professional, and prides herself on her integrity, passion, and positive nature. Sarah is dedicated to meeting and exceeding client’s expectations.

Expert HR guidance at a sensible price – Sabeza HR is “Your Human Resources Solution.”  Sabeza HR helps businesses navigate the often complex dynamics of Human Resources.  For a consultation, contact Sarah at or 843-668-4041.


OSHA Posting Reminder 2/1/17


Covered employers must complete and post their 2016 annual summary (Form 300A) of work-related injuries and illnesses by Feb. 1, 2017, and keep it posted in a common area (in each physical location) until April 30, 2017.

All employers required to keep Form 300, the Injury and Illness Log, must utilize the annual summary Form 300A to comply with posting requirements even if there have been no recordable injuries or illnesses, as the Occupational Safety and Health Administration (OSHA) will continue to focus on record-keeping violations.

This year’s summary must include the total number of job-related injuries and illnesses that occurred in 2016. More than 1.4 million establishments are required to maintain OSHA logs on an annual basis. The summary Form 300A reports a business’s total year-end number of fatalities, missed workdays due to injury or illness on the job, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. It also includes the number of employees and the hours they worked for the year.

Employers with more than 10 employees must track injuries and illnesses and post the form. Certain low-hazard industries are exempt. Businesses that employ 10 or fewer workers or those that fall into an exempt category must also record injuries if they are required to by OSHA or the Department of Labor’s Bureau of Labor Statistics for survey purposes. Only the summary must be posted; the log (Form 300) does not have to be displayed, but must be available to employees, their representatives or OSHA inspectors. Companies with multiple jobsites should keep a separate log and summary for each location that is expected to be operational for at least a year.

Click HERE to view a link to OSHA Injury and Illness Recordkeeping and Reporting Requirements.


Sabeza HR is always here to help you navigate the changing world of Human Resources.  I would be thrilled to meet with you for a free consultation to discuss your HR needs.  Please do not hesitate to contact me at or 843-668-4041.


HOT TOPICS 1/11/17


The NEW “Smart” I-9 form has been released and is eligible for use.  The purpose of the updated I-9 form is to allow for improved ease of use and reduce errors by creating a more user-friendly form.

Effective 1/22/17, all employers are required to use the new Smart I-9 form, and discontinue use of the previous form. Employers should continue to follow existing storage and retention rules for all of their previously completed I-9 forms.

Click HERE to download the new “Smart” I-9 form from the USCIS website.

The intent of the new “Smart” form is to allow employers and employees to complete the majority of the information via computer.  A few features of the new form:

  • Employees and employers completing it on the computer will see helper text for each field.
  • Employees and employers completing it on the computer can choose from drop-down lists for acceptable documents, calendars, states, and countries.
  • Employees and employers will receive alerts if information is left blank or incorrect.
  • Employers can enter information in a new “Additional Information” field, instead of in the margins.
  • Employees who use multiple translators and preparers have additional space.

NOTE:  Although this form can be completed via computer,  employers will still need to follow their normal printing and signing procedures.  The form is not required to be completed via computer, you may still hand-write the information.

E-Verify and Right to Work Posters

E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

South Carolina is a mandatory E-Verify state.  All SC employers must complete an I-9 and submit an E-Verify case for all new hires.

Mandatory E-Verify state employers and employers who are required/elected to participate in the program, are required to display E-Verify Participation and Right to Work posters (both English and Spanish, other languages as appropriate).  The posters must be placed in a conspicuous place, easily viewed by employment candidates.

Click HERE for the link to review and print the required forms.

You may have noticed a theme with the above topics.  They are both about HR Compliance.  HR Compliance is critical in any organization, regardless of industry or size.  Failure to meet Employment law regulations and requirements could result in fines and penalties and – worst case scenario, a lawsuit.

Help your company avoid unnecessary financial loss and conduct an annual HR Compliance Audit before the end of Q1 2017.  I’ll be honest – I totally get it and understand that most companies don’t “enjoy” conducting HR Audits.  That said, they are still an essential part of legal, financial, and cultural success to an organization.

A sample of a few areas to audit:

  • Employee Files
  • I-9
  • E-Verify
  • Job Descriptions
  • Employee Classifications
  • Labor Law Posters
  • And much more

Please do not hesitate to contact me if you are interested in ensuring your company is in HR compliance!

Sabeza HR is always here to help you navigate the changing world of Human Resources.  I would be thrilled to meet with you for a free consultation to discuss your HR needs.  Please do not hesitate to contact me at or 843-668-4041.

Please do not hesitate to contact me if you are interested in ensuring your company is in HR compliance!




Yesterday, 11/22/16, a federal judge in Texas blocked the FLSA changes (increased salary threshold) that were to go into effect next week, 12/1/16.  The judge granted a preliminary injunction.  This does NOT mean that rule is permanently gone.  This means that the rule has been put on “pause” and they may press “play” at a later date.  A lot is unknown at this time.  See the article below from the Society for Human Resource Management – it provides some clarification and answers many employer questions.

If you have already made the changes in anticipation of the 12/1/16 deadline and have questions about what to do now, please do not hesitate to contact me for a consultation to discuss.

Sarah Zasso, SHRM-SCP, SPHR

SHRM Article, by Lisa Nagele-Piazza, SHRM-SCP, J.D.
Nov 23, 2016


A federal judge in Texas has blocked the Department of Labor’s (DOL’s) new federal overtime rule, which would have raised the Fair Labor Standards Act’s (FLSA’s) salary threshold for exemption from overtime pay from $23,660 to $47,476.

Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas granted a preliminary injunction on Nov. 22 in a lawsuit challenging the DOL’s authority to raise the salary threshold. For now, businesses and employees are in a holding pattern.

“A preliminary injunction preserves the status quo while the court determines the department’s authority to make the final rule as well as the final rule’s validity,” Mazzant said.

What does this mean for employers? Here are some questions HR professionals may be grappling with in the aftermath.

Does my company still have to do anything by the Dec. 1 deadline? 
The short answer is no. For now, the overtime rule will not take effect as planned on Dec. 1, so employers may continue to follow the existing overtime regulations.

Is this a final decision that permanently puts an end to the rule?
No. The overtime rule could still be implemented later down the road.

A preliminary injunction isn’t permanent, as it simply preserves the existing overtime rule—which was last updated in 2004—until the court has a chance to review the merits of the case objecting to the revisions to the regulation.

However, the revised regulation may face an uphill battle: The judge wouldn’t have granted the preliminary injunction unless, among other things, he thought the challenge had a substantial likelihood of succeeding.

Can the Labor Department challenge the decision?
Yes. The department said in a statement that it is currently considering all of its legal options.

The “overtime rule is the result of a comprehensive, inclusive rulemaking process, and we remain confident in the legality of all aspects of the rule,” the DOL said.

Does this ruling apply to all employers nationwide?
Yes. Because the overtime rule would apply to all states, the judge decided to apply the injunction nationwide.

“A nationwide injunction protects both employees and employers from being subject to different [executive, administrative and professional] exemptions based on location,” he said.

What should I do if my company has already either raised exempt employees’ salaries to meet the new threshold or reclassified employees to nonexempt status?
Employers will likely want to leave decisions in place if they have already provided salary increases to employees in order to maintain their exempt status, said Alfred Robinson Jr., an attorney with Ogletree Deakins in Washington, D.C., and a former acting administrator of the DOL’s Wage and Hour Division. It would be difficult to take that back.

If there are exempt employees who were going to be reclassified to nonexempt, but haven’t been reclassified yet, Robinson said employers may want to postpone those decisions and give the litigation a chance to play out.

“This should be a welcome sign for employers, even if they’ve already made changes,” Robinson said. “They can at least hold off on further changes.”

Employers shouldn’t assume, however, that the overtime rule will be permanently barred. They should still have a plan to move forward if necessary in the future.

*Make Sabeza HR your HR Department.  For an affordable monthly fee, we become your hiring manager, create and revise policies, handle employee issues and give you expert, one-on-one HR guidance from an experienced professional.  Contact Sabeza HR for a free, no-obligation discussion.  Sabeza HR is “Your Human Resources Solution.”




You have less than thirty days.  That is how much time employer’s (regardless of company size) have left to prepare for the Department of Labor’s new FLSA Overtime Rule.  Key changes include increased salary threshold (from $23,660/year to $47,476/year) and intermittent increases every three years.  The FLSA changes go into effect on Thursday, 12/1/16.


By this time, you should have already reviewed your employee census and determined which employee’s are affected (employee’s who are currently Exempt, but will not meet the new salary threshold), determined if you are increasing the salary to meet the new requirement or converting the employee to Non-Exempt, and communicated (or have a plan to) the changes to affected employees and supervisors.

If you feel that you are not ready for 12/1/16 or have questions, Sabeza HR is here to help.  Please do not hesitate to contact me at or 843-668-4041.