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The Importance of Having a Reasonable Suspicion Policy

September 18, 2020

By Susan Chance, courtesy of SBAM Approved Partner ASE

Reasonable suspicion drug testing can be a challenge for employers, especially with so many states making recreational marijuana legal. Whether you have a current drug testing program or if you are new to drug testing, make sure that you have a clear, documented policy on your drug testing program that includes reasonable suspicion procedures. If you are subject to federally regulated drug testing, make sure you follow the steps as required by the federal agency under which you are covered.

If you don’t have a policy already in place, where do you start? Work with your legal counsel to develop the program that works best for your industry. Safety sensitive positions may have more strict policies than non-safety sensitive positions. Once you have your policy in place, make sure that your supervisors and managers are properly trained to recognize the signals that an employee may be under the influence.  Train managers on proper documentation procedures. The words used to describe the situation are important and Quest Diagnostics offers this example of documentation:

“John came to work today late. He clocked in and then fell asleep in the break room. When I woke him up, he was not startled to see me. He looked at me and went back to sleep. There was a strong odor of alcohol.”

SHRM offers the following examples for documenting specific descriptions of observations without “attempting to diagnose the situation”:

  • Odors (smell of alcohol, body odor or urine)
  • Movements (unsteady, fidgety, dizzy)
  • Eyes (dilated, constricted or watery eyes or involuntary eye movements)
  • Face (flushed, sweating, confused, or blank look)
  • Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts)
  • Emotions (argumentative, agitated, irritable, drowsy)
  • Actions (yawning, twitching)
  • Inactions (sleeping, unconscious, no reaction to questions)

Often, coworkers or others may notice behaviors and speak with management or HR. These complaints can be considered “hearsay or gossip” but should be documented. This information could be helpful in showing a pattern of behavior.

HR or management representatives should make sure to observe behaviors firsthand when a complaint came from someone else. It is also a good practice to have more than one supervisor observe the behavior and then agree that the testing is warranted.

Once the decision has been made to send an employee for testing, and if the safety of the employee under suspicion or other employees may be compromised by the behavior, the employee under suspicion should be removed from the area. Explain to the employee what was observed and that a decision has been made to send the employee for a drug test per company policy.

The employee should be sent to the testing facility. Never allow an employee who is suspected of being under the influence to drive themselves. Some employers have agreements with cab companies to transport employees for testing. Others may use alternate car services. Transportation fees should be paid by the employer.

The policy should address next steps such as if the employee has to wait for a clear drug test before returning to work and if that time will be compensated, or what will happen if the employee refuses the drug test. If the results are positive, will the employee be terminated or referred to an EAP?

For the good of your company and your employees, have a well-documented policy in place and ensure all personnel understand the policy before a situation occurs.

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