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:
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.]
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 (www.SabezaHR.com), 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 [email protected] or 843-668-4041.