written by: Mark Dziak•edited by: Jean Scheid•updated: 5/19/2011
Handling employees under the influence of drugs or alcohol can be tricky at times depending on the situation and how well your company mandates consistent policies. Here we'll answer the question can I fire an employee for suspected drug use?
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Evidence is Essential
Many employers today conduct pre-employment drug screening along with routine background checks. For liability reasons, most companies don’t want felons or persons who use illegal drugs on their payrolls, after all, there are a larger percentage of prospective employees who don’t participate in these activities. Many companies have clearly stated policies that govern drug usage. Some companies mandate random drug screening on an on-going basis. Most applicants know how long a substance remains in their bodies and the issue is whether or not they can refrain from their usage while seeking employment. Many will resume their behavior once they land the job. It is mandatory that if you are a business owner that you have a clearly defined “no tolerance" policy and get the employee to sign it. Can I fire an employee for suspected drug use? The simple answer is no. First, obtain evidence.
So let’s assume that you have a current employee that you suspect might be under the influence of a mind-altering substance. I’m not using the term “illegal" at this point because alcohol is a drug and it is perfectly legal. The law only states that you cannot drive drunk but says nothing about working under the influence. Public intoxication might apply but you’re not arresting employees. There are two factors to consider. The EEOC (Equal Employment Opportunity Commission) does not consider a person who uses illegal drugs or currently drinks alcohol to be disabled under the Americans With Disabilities Act, but does protect employees who are past drug addicts and alcohol users, and are reformed and no longer use these substances.
The best approach to this situation is if you suspect that an employee might be under the influence of drugs, after observing incoherent behaviors for example, pull them aside and speak to them privately. There are many medical conditions that can mimic the effects of drug and alcohol. By investigating, you may discover that the employee may have just been prescribed a new medication that’s perfectly legal but he might not be adjusting well and the signs you observed are simply drug side effects. You may discover that the employee has a medical condition you weren’t aware of. You must take this initial step to determine what your next step will be. Obviously, whatever the reason for the employee’s impairment you don’t want him working for safety reasons.
If you determine that an employee’s behavior cannot be related to a medical condition at that time, or any other “legal" justification for the observed behavior, then it’s time to have the employee screened for alcohol or drugs. You cannot simply tell the employee to go to a facility for testing. You must transport them and pay for the test. The same reasoning behind you not wanting them to work applies to them walking or driving to the testing facility on their own. The employee should remain on leave until the results come in. If the results are positive for a drug without a valid prescription, illegal or not (alcohol) then you must determine what your course of action will be. The law states that if you are taking a prescription narcotic, you must be taking them within the duration in which it was prescribed and taking the proper dosage. Anything outside of these parameters is considered to be illegal drug use. Again, clearly defined policies will automatically dictate the outcome. If you don’t have a drug or alcohol policy, then the situation can be a little more difficult to deal with. Terminating an employee for “illegal" drug use is perfectly fine. They have broken the law, but a person who tested positive for alcohol use on the job is a bit more precarious. If your employee tests positive for alcohol you might offer that employee treatment as a condition of continued employment or you can simply act under the zero tolerance policy if you have one.
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Other Signs of Drug or Alcohol Abuse
Employees who use drugs and alcohol on a consistent basis might be able to hide the physical effects of their use, but absenteeism and work related confrontations usually surface and are repeatedly disciplined. Since most users cannot change these absence and behavioral problems, they are usually terminated for reasons other than those of the direct drug use. Consistency is the key when handling these matters from an human resources standpoint. Attorneys are poised and ready to pounce on companies with deep pockets for any inconsistencies when companies handle these situations. Discrimination accusations surface and a whole new set of problems arise. So to answer the question, can I fire an employee for suspected drug use? If you have gathered the essential evidence and you can conclusively document the usage you can take whatever disciplinary measures you deem necessary.
In summary, clearly define what your company’s policy is regarding drug and alcohol use. Make sure the employee reads and signs it stating that they understand and agree to those terms. Clearly state what the disciplinary measure will be and if termination is mandatory. If you take these simple steps not only will you deter some employees from casual use, but you will also let them know that if they do choose to participate in these activities, whether at home or in the workplace, it doesn’t matter, the behavior will not be tolerated. From then on, it’s up to the employee to decide how important their job is to keep.
Part of answering the question, can I fire an employee for suspected drug use is implementing your no tolerance policy when it comes to drugs or alcohol. In our Media Gallery, you'll find a sample employee handbook that offers verbiage on a no tolerance policy. To better help you write your guidelines and rules to inform your employees so they understand your policy, read the article How to Create an Employee Handbook and What Should Be In It. The important thing about creating a no tolerance policy is making sure your employees understand it and sign an acknowledgment page saying they received a copy of the policy.