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Monterey, CA 93940
Tel: (831) 443-7100
Fax:(831) 443-8585
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Handling Employees Under
the Influence
Question:
How should I handle an
employee who reported to work obviously under the influence of drugs or
alcohol? What can/can't I say?
Answer:
Prior to taking any administrative action
against your employee, SLG strongly recommends you consult with legal
counsel as each case will be different and require separate analysis. The
first thing to do in this situation is to relieve the employee from his
duties as the employer has a duty to provide a safe working environment for
all employees and the general public. As an employer, you are not required
to tolerate an employee attempting to function in such a condition. Also,
your "zero tolerance" drug and alcohol policy should prohibit
employees from reporting to work under the influence of controlled
substances (e.g., alcohol, marijuana, methamphetamine, heroin, cocaine,
etc.) as well as prescription drugs, which are also often abused. You
do not need to say anything specific at first, other than to tell the
employee that he appears to be unable to perform his job functions and is
being relieved of duty pending further investigation into his condition. Be
sure to look for objective indications that the employee is under the
influence as the employer will need to be able to articulate a reasonable
suspicion that the employee is under the influence should a drug test be
necessary.
Once the employee has been relieved of
duty, escort the employee to a private area or room in the workplace for
further questioning. Because there may be a legitimate reason for the
employee's behavior that is health-related and a privacy concern to the
employee, it is best to deal with these situations in private. That said,
feel free to ask the employee if he is under the influence of drugs.
Surprisingly, employees sometimes admit to this. If the employee admits
being under the influence, termination of employment would probably be
appropriate absent some special circumstances - for example, perhaps the
employee was legitimately taking a prescription drug that produced
unexpected adverse reactions through no fault of or abuse by the employee.
In the case where the employee admits using an unlawful drug, like
marijuana, the employee should be subject to immediate termination.
It is important to look for objective
indications that the employee is under the influence because under
California privacy laws, an employer should not send a current employee for
a drug test unless the employer has a reasonable suspicion the employee is
under the influence. If, for example, you smell alcohol on the employee's
breath, the employee slurs his speech, you recognize the aroma of
marijuana, the employee's eyes are bloodshot, and/or the employee is
stumbling into the walls or cannot stand up, you probably have reasonable
suspicion to submit the employee to a drug test. If the employee then
submits to a drug test and tests positive for drugs or alcohol, you have
grounds to terminate the employee. If you have reasonable suspicion and the
employee refuses to submit to a test, you could also terminate the
employee. SLG recommends the implementation of a written reasonable
suspicion policy in advance to educate employees and to obtain their
written consent to be tested in addition to their consent at the time of
the testing. Employees should be notified in advance of what substances
will be tested for as well as the tolerable level of each.
Under Labor Code §1025, private employers
with 25 or more employees shall reasonably accommodate employees who
voluntarily enter drug/alcohol rehabilitation programs provided that the
rehabilitation does not provide an undue hardship for the employer.
However, there is no affirmative duty on the employer to allow an employee
to enroll in or to attend a rehabilitation program. The employer also may
terminate or refuse to hire an employee if the employee cannot perform his
job duties because of current drug/alcohol use or poses a threat to the
health or safety of himself or others. However, employers covered by
FMLA/CFRA may be required to give time off to employees undergoing
treatment.
Counsel to Management:
Although certain scenarios might be straight-forward, it is always a good
idea to consult with counsel as each case should be examined on a
case-by-case basis. Please contact the Saqui Law Group if you have
questions concerning any personnel issues.
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