As an employer or human resources representative, you have the right to require employees come to work sober and unimpaired as outlined in your Workplace Drug & Alcohol Policy. Within that right, you have the ability to test employees for drugs and alcohol if you suspect they are under the influence while on the job.
Sometimes it’s obvious when an employee shows up drunk.They’re slurring their words and reek of booze. You may spot a worker “napping” in the warehouse. He is somewhat unresponsive and confused when attempts are made to wake him. You could be cornered by an employee who states you have intentionally contaminated the water to harm her. When you attempt to calm her, she is disoriented and unable to make eye contact. Fortunately, or unfortunately, depending on your viewpoint, the signs and symptoms are often less dramatic, but your gut still tells you something is wrong.
Of course you cannot test whomever you want, whenever you want without exposing your company to potential liability. When faced with an employee whose behavior and often appearance lead you to suspect they are impaired on the job, it is recommended you articulate and document first hand observations to warrant the need for a reasonable suspicion test. The best practice is to involve another supervisor to observe the employee and further document their observations.
It can be hard for an employer to address reasonable suspicion with an employee for a variety of reasons. Fear of being wrong, having a personal relationship with the employee and/or fear of retaliation are just a few examples. Employers often request a drug test be performed, but do not specify that it is due to reasonable suspicion. Rather, the employer requests the reason for testing be categorized as a “random” or listed under “other.” For these and many other reasons, it is critical that a company have a Workplace Drug and Alcohol Policy that is clearly outlined and includes provisions for conducting reasonable suspicion testing.
When you suspect an employee is under the influence of drugs or alcohol, documentation is key. Having a written record of your direct observations concerning behavior, appearance, odor and immediate work performance supports your decision to move forward with reasonable suspicion testing. Companies that fail to have procedures in place for this type of testing – regardless of the outcome – put themselves at risk for legal liability, fines and financial losses.
A simple hunch or gut feeling is not an acceptable basis for directing an employee to submit to reasonable suspicion testing. Second hand information about an employee’s behavior is not basis alone for testing, nor is an employee’s behavior you had directly observed two days ago. A reasonable suspicion test is warranted if you have current, direct, observable behavior that leads you to believe an employee may be impaired while at work. Remember, these can include signs associated with physical appearance, behavior or perceived mental state.
Eyes: bloodshot, glassy/glazed over, dilated or constricted pupils
Speech: slurring, drastic changes in the rate of speech (very slow or fast)
Body: stumbling, fumbling, shaking, fidgeting, sweating, shivering, unusual breath or body odor
Taken individually, any of these symptoms can indicate other psychological or health issues. That’s one reason the State of Nevada Alcohol and Drug Program, within its own employee policy recommends two or more signs be observed before moving forward with reasonable suspicion testing.
There are a few scenarios in which a single factor would be cause for reasonable suspicion testing. If an employee is directly observed to be in possession and consuming drugs or alcohol on the job, employers can request the employee submit to a drug test. Likewise, if a supervisor smells the odor of alcohol or another drug on the worker’s breath or clothing, reasonable suspicion testing would apply.
The best practice for companies not required to comply with federally mandated testing is to follow the Department of Transportation’s guidelines. Each DOT mandated agency has similar wording concerning reasonable suspicion testing. In a nutshell:
Document specific, contemporaneous, articulable observations of the employee’s appearance, behavior, speech or body odor.
Encourage all employees to understand the symptoms of on-the-job drug or alcohol use among their coworkers. Create an environment which promotes trust and confidence so employees feel comfortable coming forward to report a concern. Keep in mind, in order to qualify for reasonable suspicion testing, an employee’s behavior should be directly observed by a manager, supervisor or human resources representative and not be based on hearsay. Department of Transportation protocol requires that trained supervisors must directly observe the employee’s behavior.
When an employee expresses a concern about a co-worker, use it as an opportunity to be on alert. If they noticed irregularities in an employee or their behavior caused by intoxication, chances are you will too.
The State of Nevada’s Drug and Alcohol Program recommends to its managers that, whenever possible, they have another manager or supervisor confirm their suspicion before proceeding with a test. To avoid bias, don’t tell them what you suspect, but simply state there are concerns about the employee’s job performance or behavior. Allow them to observe the worker, draw their own conclusions and offer an opinion. If both supervisors agree, the basis for reasonable suspicion testing is much stronger.
Now that two supervisors agree on their shared suspicions, it’s time to make a plan of action for proceeding with the drug test. First, you should clearly and thoroughly document the observed facts. Every company should include a documentation procedure for reasonable suspicion testing.
When you’re ready to initiate the drug testing process, remove the employee from their work station and bring him or her to a private area. You can start by saying, “I have noticed some things that are concerning me about your behavior or performance at work.” Then, present the specific facts as they have been observed independently by you, and if relevant, another supervisor.
Provide the employee a consent form for the test. If an employee refuses to submit to the test, most companies treat a refusal as a positive test with the same potential consequences. Best practice is to have a consent/refusal form for the employee to sign.
Unless you choose a drug testing company that offers on-site services, a supervisor, manager or human resources representative must provide transportation for the employee to the testing clinic. The employer is also responsible for providing the employee with transportation home and advising the employee they cannot drive their vehicle. For non mandated companies, if negative test results are immediately available, the employee may return to work and/or drive themselves home.
This is when your company’s Drug and Alcohol Policy becomes especially important. If the policy thoroughly explains your reasonable suspicion procedure – and your company follows it – you definitely reduce the likelihood of liability if an employee tests negative.
Your company will absorb the cost of the test and the loss of productivity. There’s no need to apologize to the employee; it sets a bad precedent. You based your decision to test on direct, specific, observations. You strive to protect your employees and clients. Be sure to thank the employee for complying with the company’s request. You may also choose to compensate the employee for their lost time at work.
Regardless of what happens, if you handle a reasonable suspicion drug test with clarity and professionalism, you can swiftly resolve the issue. Consult your state laws and industry regulation to be sure your policy is compliant.
Review our training program and Sign Up for our 3/27/18 Reasonable Suspicion Training.