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.