Dear Littler:  We are a manufacturing company with facilities in multiple states.  We have had a number of incidents when supervisors have suspected an employee was impaired while working due to alcohol or drug use.  We are particularly concerned about employees potentially endangering themselves or others if they are using our equipment while impaired, but we are unsure what to do in these circumstances.  Can you help?

—Worried about Workers

Dear Worried,

You are right to be concerned!  Overdose deaths in America have soared in recent years – more than doubling since 2015 – and workplaces are not immune from the problems associated with increased rates of substance abuse.  Although individuals who are currently engaged in the illegal use of drugs are not considered disabled, individuals who are dependent on alcohol may be protected against status-based discrimination as a matter of federal or state law.  That said, the Americans with Disabilities Act (ADA) states that employers may “prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees,” and “hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.”¹ That means that if your employee is currently abusing drugs, you do not have to show impairment to discipline that worker under the ADA, but when you do see signs of impairment, it is helpful to understand whether that impairment is related to a substance abuse disorder.  Increasingly, too, state law may protect an individual who engages in the off-work use of marijuana – even if the ADA does not – requiring the employer to show that the employee either used or possessed marijuana or marijuana products during the workday or was impaired while working to step in.

One potential challenge for employers is how to determine whether an employee is in fact impaired at work, particularly when the ADA also includes protection for an employee “erroneously regarded as engaging in [the use of illegal drugs], but [who] is not engaging in such use.”²  What are the appropriate and defensible steps employers can take if they suspect an employee is impaired while working?

First, it is helpful for employers to have a clear policy, distributed to all employees and posted in the workplace (and on the company intranet), prohibiting employees from working while impaired.  These policies may also prohibit off-work conduct that is illegal, as permitted by state laws and collective bargaining agreements.

Second, employers should implement their policy and have an evaluation and testing protocol in place so that supervisors and managers (including those who work nights and weekends) know exactly what to do in the face of suspected impairment.  Employees should be trained on the policy, with a particular emphasis on recognizing, reporting and contemporaneously documenting impairment and other behaviors associated with substance abuse.  Supervisors and managers should partner with human resources to ensure a timely investigation into suspected policy violations and should choose drug and alcohol testing protocols that are fair and, where possible, focused on investigating evidence of drug and/or alcohol use close in time to the observed concerning conduct or other indicia of impairment.

Reasonable suspicion is required in some states for drug or alcohol testing, and state laws differ widely regarding other testing requirements.  Accordingly, employers are well-advised to consult with counsel to determine the legal rules applicable to drug or alcohol testing in the state(s) where the employee works.  Likewise, if any employees are commercial drivers, employers need to ensure compliance with all applicable Department of Transportation requirements for medical qualification and drug testing.

Another question employers will have to grapple with is whether an employee should continue to work pending investigation.  Generally speaking it is unwise to allow someone who is potentially impaired to continue to work, particularly where safety is an issue.  Among the things to consider (in addition to what is provided for in the employer’s policy) are the seriousness of the incident or conduct that triggered the investigation and the risk to the safety of the employee or others.  If it is determined that the employee should be placed on leave, employers may want to consider paid leave and should consult the relevant policy.

In conducting the investigation, some of the signs and symptoms of substance abuse include slurred or incoherent speech, unsteady gait or poor coordination, dilated or constricted pupils, eyes that “jump” or do not “track” a moving object, bloodshot or watery eyes, flushed or very pale face, odor of alcohol or other substances, and erratic or unusual behavior particularly after a break, as well as safety or policy violations or misconduct.  While all of these indicators could be related to a medical or other condition, unexplained changes in an employee’s appearance and demeanor are worth investigation.  Employees can be asked to explain any unusual changes in their behavior and appearance, too.  All of the findings should be thoroughly and carefully documented, dated and signed. 

If, based on all of the facts and circumstances, the employer determines that discipline is appropriate, it should consider how it has handled similar instances of misconduct or performance problems previously.  In cases where an employee acknowledges an addictive disease, the employer may also consider offering a leave of absence for the employee to seek treatment or, depending on state law, require an evaluation for substance abuse dependence, and mandate education or treatment, if prescribed for that individual, as a condition of continued employment.