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This is your brain on drugs: Any questions?

June 25, 2012

Article courtesy of SBAM Approved Partner ASE

By Eric Brown, Anthony Kaylin 

Think of the late-1980s TV spot depicting an egg frying in a hot skillet. The voice-over bluntly states, “This is your brain on drugs. Any questions?”

That public-service ad is still relevant today; drugs are devastating in any context. A worker on drugs in the workplace is a liability simply from being unable to do his or her job, but even more so as a safety concern.

The two situations below are not at all uncommon. What are the professional but common-sense approaches to dealing with them?

Case 1: Joe has been with the company nearly five years. He is a diligent worker who has always had high performance reviews. In the past three months however, there has been a decrease in work quality, a sloppier than normal appearance, absenteeism, and when asked about missed work assignments, he has multiple excuses and blames other people for not meeting deadlines.

What to do: You do not know whether or not Joe has a substance abuse problem. Do not try to diagnose the problem. Instead, address the issues at hand: professional appearance and performance. Make expectations clear and inform Joe when he does not meet them. Set goals and time limits for improvement. Be prepared to support your claims with documentation about Joe’s performance.

If you take the road that Joe has a perceived disability, you may be violating the Americans With Disabilities Act (ADA).  Therefore, you should focus on performance only.  Make sure you follow up with your legal counsel to ensure you are taking the right steps.

Case 2: Jane, a high-level employee with a positive track record, enjoys her typical smoke break as she’s been doing so for a long time. Lately, instead of standing at the usual spot, she has been taking walks around the office building. Once, as she was walking, you saw Jane was ingesting some substance.  When you go to talk to her immediately after just to have a casual conversation, you notice she has a very high energy level. Jane was complaining of long hours and no energy before, and now she doesn’t complain about the low energy.

What to do: If you believe you have reasonable suspicion that Jane has ingested an illegal substance, you may be able to have her take a drug test. However, your policy must be specific and you should immediately consult with your legal counsel to make sure you take the right steps.  If could be that she is simply taking new medication, and her actions are caused by this drug.

If a drug test finds she is using an illegal substance, the decision on what to do becomes your choice. Under the Americans with Disabilities Act (ADA), employees who engage in illegal use of drugs are excluded from the definition of an “individual with a disability.”

Many policies take a one-strike-and-you’re-out policy.  However, Jane is a high-level employee that your organization may wish to keep. Suggesting using an Employer Assistance Program (EAP) may be in your best interests. Hiring costs for a replacement may run higher than a drug rehabilitation program for Jane.

These two cases are only a few examples of the many possibilities of dealing with substance abuse. Depending on a “legal” or “illegal” drug, as an employer, your rights change. For example, ADA prohibits employers from discriminating against disabled employees. Alcoholism, currently, is considered a disability. Also, attending an alcohol or drug rehabilitation program falls under the ADA.  Furthermore, the suggestions above presume that you have a drug policy in place that specifically lays out what is and is not an illegal drug, your drug testing procedure, what will be tested, who will be tested, and what your organization intends to do when an employee tests positive.

To make sure your policy covers everything it should cover, or to look at samples of comprehensive policies, contact ASE.

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