According to a recent article on BusinessNewsDaily.com, 10 percent of small businesses had employees show up to work under the influence of a controlled substance in the last year. The most common drugs of choice? Alcohol, marijuana, and – perhaps the most pervasive and dangerous of them all – prescription opiates.
About 75 percent of surveyed small-business owners agreed that employees who work under the influence pose a threat to their businesses. And it’s likely that your employee handbook already prohibits the use and abuse of controlled substances at work.
So what do you do if you suspect an employee is Don Drapering it up at work? Or if you’re pretty sure your new worker is hitting the ganja every morning in her car before clocking in? Immediate termination may not be the answer. Here’s what you need to know.
The Business Risks Associated with Impaired Employees
Employees who work under the influence of controlled substances pose a variety of threats to your business. Generally speaking, your business can be found liable for the actions of an impaired employee.
Let’s say you own a small fleet of mobile coffee trucks. One of your employees is under the influence of prescription painkillers when he runs the truck into a fuel pump at a gas station. Your business could most definitely be sued for the resulting damages.
According to the BusinessNewsDaily.com article, opiate addiction can cause…
- Dips in worker productivity.
- An unsafe work environment.
- Drawn out disability claims.
According to “Painkillers Fuel Growth in Drug Addiction,” an article in the Harvard Mental Health Letter, 18 percent of users who abuse painkillers get them from a prescribing physician. Sometimes, a typical work injury can become the catalyst for a painkiller dependency. Meanwhile, your Workers’ Compensation Insurance is footing the bill.
To mitigate these risks, you might consider dismissing the employee. But as we’ve learned in “The Small Business Guide to Avoiding Discrimination Charges when Firing Employees,” firing employees can prompt a whole new set of risks: employment discrimination charges.
Case Study: Can a Small-Business Owner Fire an Alcoholic Who’s Fallen off the Wagon?
Let’s say one of your employees, who disclosed that she’s an alcoholic and regularly attends meetings, has fallen off the wagon after ten years of sobriety. Over the weekend, the employee overdosed on alcohol and painkillers and ended up in the hospital. She checked herself into a rehabilitation program and will miss two weeks of work.
You are glad this employee is receiving the treatment she needs, but her job is essential. You need to find a replacement right away. Another scary detail? She frequently drives clients around, and you don’t want to risk her driving impaired on company time.
But before you fire her, consider that alcoholism is a protected disability under the Americans with Disabilities Act (ADA). This law prohibits employers from firing employees based on their disabilities as long as they…
- Don’t violate company policy. To your knowledge, your employee has never worked while under the influence, which would violate the terms in your employee handbook. (However, in the fuel-pump accident example in the previous section, you’d likely be within your rights to fire the employee for violating established protocol.)
- Are qualified for the job. Your employee has always received excellent performance reviews.
- Require reasonable accommodation. Your business already allows a certain amount of annual personal days for individuals with medical emergencies. Additionally, this employee hasn’t taken her vacation days yet this year – so her two-week absence doesn’t exceed what the policy already allows.
In other words, firing the employee now could prompt a discrimination charge and lead to a wrongful termination lawsuit. While a trial may or may not rule that the employee’s rights were violated, the lawsuit itself will still cost your business several thousand dollars in legal fees. You may even be advised to settle the claim out of court.
If you don’t have Employment Practices Liability Insurance to help you pay your legal bills, these employment discrimination claims could severely drain your finances. That’s why it’s best to carry the proper insurance and take steps to avoid discrimination claims altogether.
For more about general discrimination risk management, check out “How Small-Business Owners Can Prevent Employee Discrimination Lawsuits.”
Tips on How to Handle an Employee Who You Suspect Is Impaired at Work
We aren’t saying that small-business owners can’t terminate employees who work while under the influence of drugs or alcohol. We’re just suggesting that you carefully navigate the situation in order to reduce the risk of being sued for discriminatory employment practices. The Small Business Chronicle’s tips can help you handle such a situation:
- Always review relevant legislation. Before you make any decisions, you need to review federal legislation and local laws. Federal Equal Employment Opportunity laws prohibit unfair treatment based on an employee’s disability, age, race, ethnicity, sex, or religion. These laws usually apply to businesses with 15 or more employees, but state laws may implicate smaller businesses, too. Plus, individuals can still sue your business for discrimination, even if the situation falls outside the jurisdiction of the law.
- Review your business’s policy. Follow your business’s drug and alcohol policy to the letter. What does it say about the criteria for testing an employee suspected of violating the policy? How does it outline the procedure for establishing reasonable suspicion of use? If you don’t have this policy in place, you should do so immediately (and have all employees sign to show they’ve read and understood the protocol). Be sure to consistently enforce the policy. Otherwise, an employee who is part of a protected class may suggest that subjecting them to a drug test, for example, is unfair and discriminatory behavior.
- Gather evidence. Before you can confront an employee about possible impairment, you need to observe the employee’s behavior and document what you see. Does the employee have bloodshot eyes? Are they slurring their speech? Falling asleep under their desk? Smelling of marijuana or alcohol? Document these findings.
- Talk to the employee. Before you accuse the employee of violating company policy, express concern for your employee’s health. Speak as calmly and non-judgmentally as possible. Try to refer the employee to an assistance program, and don’t forget to mention the risks involved with working under the influence.
- Test the employee. You can only do this if your policy allows it (or if the law requires it). If you don’t have a policy in place, you cannot force an employee to undergo testing. You risk discrimination lawsuits if you do.
- Send impaired employees home. If you reasonably suspect that an employee is impaired, you can send them home. But don’t allow the employee to drive! If they are hurt on the way home, your business could be held liable. Call the employee’s emergency contact to arrange for their transportation.
- Form a plan. Some businesses allow employees to attend a substance abuse program as a “last chance” before termination. You could also come to an agreement with the employee. For example, perhaps they agree to stop using marijuana before work to ensure they can keep their job.
- Discipline the employee. If the employee refuses to seek treatment or to honor your agreement, you may decide to fire the employee. If you are still concerned about discrimination claims, talk to a lawyer that specializes in employment law. Do note: performance evaluations should be conducted separately from discussions about the substance abuse. Though the two may be related, it’s best to document each discussion separately so the employee can’t accuse you of treating them unfairly.
For more information on avoiding EEO lawsuits, check out “Employment Discrimination Lawsuits: Case Studies.”
This post is part of an ongoing series on Employment Practices Liability Insurance, the high cost of employment discrimination lawsuits, and EEOC laws. Stay tuned for more on what can go wrong when hiring (and firing) employees.