Sam, one of your employees, has been acting strangely. First he started staggering and bumping into walls. Then he ignored his coworkers. And now you've found him sleeping at a job site.
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Sam, one of your employees, has been acting strangely. First he started staggering and bumping into walls. Then he ignored his coworkers. And now you've found him sleeping at a job site.
What's wrong? You suspect Sam's on drugs. That's bad enough-but even worse is your uncertainty about how to handle the problem. How can you confront Sam without insulting him? And what if your suspicion is wrong?One thing's for sure: You have to do something. Sam's productivity is dropping. Other employees are starting to avoid working with him. And you know if Sam ends up hurting a fellow worker or a customer, intentionally or not, your business could be hit with a lawsuit.
"If you have an employee with a drug abuse problem, and you look the other way and that person causes an accident or harms a third party, then you may be on the hook for negligence," says Nancy N. Delogu, shareholder in the Washington, D.C., office of Littler Mendelson, the nation's largest law firm defending employers in labor disputes.
Smart Policies
Workplace drug abuse has long been a legal and safety issue. Today, though, employers face a special challenge from the advent of high-potency prescription medication. Employers can be sued for negligence when an impaired employee harms a member of the public. (See "Liability Limits" for more on employer liability.) On the other hand, employers can be sued for wrongful discharge by workers who have been wrongly dismissed for using prescription medication.
The solution to the problem of dealing with Sam, and others like him, begins long before you notice anything amiss in the workplace. Your business needs to establish workable drug-abuse policies that protect your business and the public.
"The best thing is to have a clear policy that prohibits the use of illegal drugs anywhere, not just the workplace," advises Delogu. There is also a question of illegal activity, such as drug dealing, that you'd like to keep out of the workplace.
Your workplace policies need to conform to the laws of your state. "No one federal law covers drug-free workplace policies, except for certain employers who are federal contractors," says Delogu. "But every state does have laws allowing employers to establish policies banning illegal drug use."
Your attorney will need to provide guidance on the wording that conforms to your own state laws. Many policies contain provisions that prohibit:
• Use or possession of illegal drugs, on or away from the business premises.
• Use of prescription drugs in a way not in accordance with the prescription. "Your policy might state, 'With respect to prescription medications, you are required to maintain correct dosage and tell your supervisor if you have any warnings that your drug usage may affect safe performance,'" Delogu suggests.
• The presence of detectable amounts of prohibited substances in the employee's system.
Test and Verify
Many workplace policies also call for drug testing. Again, state rather than federal law most often applies and you must obtain an attorney's advice before instituting any workplace testing program.
"State laws vary as to when and how you can do testing," says Delogu. "Some require, for example, that you use a laboratory for testing rather than do the testing at the workplace. In such cases you may be able to save money by having the initial testing done first at your workplace. If a test comes back positive, you can send the sample to a lab for a confirmatory test."
While your own policies must follow state laws, many policies call for provisions such as these:
• Pre-hire testing. "I typically advise all employers to do a pre-hire drug test," says Delogu. "About five percent of people who take these tests fail them each year."
• Random testing. "Once the employee has been hired, suspicion-less drug testing is not usually done unless the employee is in a safety-sensitive position," Delogu notes. "In such cases annual testing at preset times is usually not effective since employees who know a test is coming will stop taking their drugs temporarily. Much better is random testing, even if it is at a low frequency rate such as less than once a year. Such testing can be a deterrent and can be presented to employees as part of an overall safety program."
• For-cause testing. This is conducted whenever the company suspects the influence of drugs. For-cause testing is especially subject to state and local laws, and an attorney must advise you on what constitutes "reasonable suspicion" in your jurisdiction. Sometimes reasonable suspicion can be triggered by accidents, tardiness, poor productivity, or behavioral changes, especially if in conjunction with an increase in argumentativeness or belligerence.
• Post-accident testing following a workplace incident. This is often mandated for all employees who potentially contributed to the accident.
• Be sensitive in how you do your testing. "People are often a little put out," says Joel Myers, president of Clarity Drug Test Consultants in Bend, Ore. "Definitely do it in private, keeping it confidential."
Schedule Training
The best workplace policies will do no good if people don't know about them or don't know what actions to take when drug abuse is observed or suspected. "People are reluctant to act when they don't know what to do," says Nicholas Barry, a substance abuse professional in Saint John, New Brunswick. "So schedule some dedicated training for supervisors. And make sure everyone in your workforce can recognize signs of drug abuse."
It should be clear in your policy that the employee who fails to report drug abuse can become liable. Your training should also include the importance of controlling alcohol use. "While you cannot prohibit the use of alcohol at home, you can bar people coming to work with it in their systems," Delogu says.
Be careful when you offer alcohol at company parties, she adds. "Establish a policy that states something like, 'If we choose to serve alcohol and you choose to drink, you should remain unimpaired.' It's also wise to offer some transportation home for employees who attend your party."
Speaking Softly
Dealing with suspected drug abuse calls for sensitivity. Approach any such employee with a statement such as: "This is what I am seeing," describing the behavior observed. Then ask, "Do you have an explanation for that?"If the person states that he is taking prescription drugs, says Delogu, be aware that the use of prescription drugs is in many cases protected by the Americans with Disabilities Act (ADA) or state laws prohibiting disability discrimination. While the ADA covers businesses of 20 or more employees, most states cover smaller employers. It's important to know your local requirements.
Even if an individual on prescription drugs is impaired to the point of not being fit for duty, it may be possible to accommodate. "Simply terminating employment without discussing the problem is unwise," Delogu says. "Talk with the individual and see if there is a way to accommodate any medical condition so the job can be performed safely." Delogu suggests saying something like this: "We worry that you are a safety risk. Let's sit down with your physician and see what we can do so you can perform your work safely."
As this article suggests, early action is a good antidote to a problem that can only become more serious over time. "When you see an impaired individual in the workplace be aware that the person will very likely be a repeat offender," says Barry. "So it's better to deal with the issue sooner rather than later."
For assistance in developing your own business policies you may want to seek the assistance of a substance abuse professional. A searchable database of these individuals is available at www.saplist.com.
The more familiar you are with your employees, the sooner you can act. "It's easier for a smaller employer to spot a problem because they know their people really well," Delogu notes. "On the other hand, familiarity can lead to laxity. Many smaller employers feel they don't need stated policies since they believe they will spot a problem right away. That doesn't always happen."
When the employer does spot a problem, adds Delogu, it can be too late to avoid damage to the company. "It's better to establish policies and have conversations up front to make sure your policies are understood."
Approaching Employees Suspected of Drug Abuse
When an employee starts acting in a way that indicates possible drug abuse, knowing how to respond is essential. Consider the case of Sam, the employee in the opening scenario of the accompanying article. How can you approach him in a way that won't aggravate him and make matters worse?
"As with other issues of an employee's behavior, you need to pull Sam aside to a place where you can talk in private and try to problem-solve," says Ian Jacobsen of Morgan Hill, Ca.-based Jacobsen Consulting.
Start by describing the behavior you have observed: "Sam, yesterday I observed you weaving from side to side while carrying supplies onto the job site. I also saw you bump into Marty when you were walking back to the truck. This morning at 10:15, I dropped by the job site to talk with you and found you sleeping. This isn't like you-Is everything OK? What's going on?"
It is essential to describe just the behavior without trying to infer meaning to it, says Jacobsen. "Expressing an assumption that he is on drugs is apt to be a major 'hot-button.' Asking whether everything is OK is showing concern for Sam. Asking him what's going on invites him to explain his behavior."
Sam may not say that he is on drugs, even if he is, but he will be on notice that you are observing peculiarities in his behavior. "Sam needs to know that his behavior is unacceptable and that you expect him to correct it," says Jacobsen. "His job depends on it. Ask what help he needs, if appropriate, from you and the company in order to change. Then confirm your discussion in a memo to him with a copy for his personnel file."
If your attorney advises you that this will not violate your state laws, at this point you should also require a drug test. And if Sam is on prescription medication that is causing the problem, you will want to try to accommodate by modifying his workplace or his activities to obviate problems.
However sensitive you are, adds Jacobsen, Sam may not like being reminded of his problems. "I can't guarantee that Sam's feathers won't be ruffled, as there is a better than average chance that he is sensitive about anything that might blow his cover."
If Sam is not on drugs but continues to act in unacceptable ways, set up yet another meeting to discuss the issue. If it gets to the point where one more incident will cause him to be fired, let him know that. Then if you get to a point where Sam has to be let go you will have the paper trail to document what you have done to help him deal with his problem.
At the termination meeting you can say something like this: "Sam, remember that we discussed your weaving down the hall and sleeping on the job on July 22. On August 4, we discussed ______. And now we are dealing with _____. As I mentioned on August 4, one more incidence of such unacceptable behavior would prompt your termination of employment. What you did this morning went over the line. I'm going to have to terminate your employment effective today."
Business Q & A by Jim Blasingame
Q: How do I find out if an idea for a trademark or logo is available for registration?
A: The short answer: Go to www.uspto.gov and search for your idea. There you can find out if someone has already registered an idea similar yours. You can pursue the application on your own, but you may want to work with an intellectual property attorney (i.e., a patent attorney) to make sure it's done correctly. Rest assured that the cost of such professional services is not prohibitive.
Jim Blasingame is the creator and award-winning host of the nationally syndicated radio/Internet talk show, "The Small Business Advocate," and author of Small Business is Like a Bunch of Bananas and Three Minutes to Success. Find Jim's show and more at www.SmallBusinessAdvocate.com, plus instant answers to your questions at his small business knowledgebase, www.AskJim.biz.