Employmer Drug and Alcohol Investigations

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August 23, 2018
Author: Julie A. Proscia
Organization: SmithAmundsen LLC

I. Drug and Alcohol Policies and Procedures
Most companies are firmly committed to providing a productive, safe and healthful work environment. The use of illegal drugs, abuse and misuse of alcohol, adversely affects those objectives by increasing absenteeism, lowering productivity and quality and most of all, jeopardizing the health and safety of those involved and the safety of others. Thus companies opt to implement a drug and alcohol policy and procedure to address where and when an employee may be subject to drug testing.

You should consider including the following in your drug and alcohol policy and procedures:
1. Statement of the Policy – including the purpose behind the policy, what types of testing will be conducted, what are the implications for testing positive, prohibitions by the Company, obligations of the employee, searches by the Company of Company property and safeguarding of testing information.
2. Drug and Alcohol Testing Programs – circumstances in which testing will be conducted and how the testing will be conducted (i.e. post-offer testing, reasonable suspicion testing, post-accident testing, random testing, return to duty testing, follow-up testing).
3. Testing Methodology – types of screen mechanisms, facility that will be conducting the testing and chain of custody.
4. Disciplinary Provisions – describing what actions can result from a positive test result and circumstances where an employee refuses to submit to a test.
5. Reinstatement of Employee After a Positive Test – including a last chance agreement.
6. Voluntary Submission to Employee Assistance Program – prior to being selected for testing, an employee could voluntarily enroll in an employee assistance program. Outline the program and the requirements for participation in the program.

II. What is Reasonable Suspicion?
Reasonable suspicion is the employer’s reasonable suspicion that the employee is under the influence. Employers should include in their Drug and Alcohol Policy in what circumstances drug testing will be conducted based on reasonable suspicion. Some sample language could include the following: “Testing on the basis of reasonable suspicion shall include, but not be limited to: 1) involvement in a near-miss accident (an accident that was narrowly avoided) caused by the employee’s actions or inaction; 2) observation of an employee acting or appearing in a manner which suggests drug or alcohol use, such as, behavior, appearance, judgment, coordination, job performance and/or other conduct including, but not limited to, slurred speech, glassy eyes, unsteady walk, disorientation, significant or repeated lapses of concentration, emotional outbursts, substantial mood changes, the smell of alcohol on the employee’s breath, etc.; 3) instances where the Company observes or receives credible information that the employee is using or has symptoms of drugs and/or alcohol use; or 4) other facts which support a reasonable belief that the employee is using or has symptoms of drugs and/or alcohol use in violation of this policy.”

III. Who Conducts the Reasonable Suspicion Test?
The initial determination for the reasonable suspicion test will be conducted by Company managers and supervisors. Thus, all pertinent Company managers and supervisors should receive training to assist them in identifying behavioral characteristics of the use of prohibited substances in the workplace. Your policy should include language to the effect that any manager or supervisor who observes such behavior must, within 24 hours, confidentially notify the Company’s Safety Director in writing of the date, time, particular facts observed and employee’s name.

The Company’s Safety Director must then determine if the manager’s or supervisor’s suspicions are reasonable within 24 hours of being notified. Upon the Safety Director’s determination that reasonable suspicion exists, testing can commence.

In reasonable suspicion cases, the employee should be transported to and from the collection site by a Company representative and/or an independent third party for drug and alcohol testing. Refusal to consent to testing can be considered insubordination and grounds for termination of employment.

IV. Last Chance Agreements – Counselings and Termination
Employers may terminate an employee who tests positive for the use of a controlled substance and/or alcohol in violation of their policy or program, as reported to the Company’s designated representative (i.e. Safety Director, Human Resources Manager, Director of Risk Management) by an independent Medical Review Officer, and shall be unqualified to work for the Company.

However, the Company can make the option available, at its sole discretion, of offering the employee reinstatement on a one-time basis if the employee will agree to comply with certain reinstatement provisions in a last chance agreement. A last chance agreement provides the employee with one additional opportunity to remain free from drugs and alcohol while present on the Company’s premises. As part of such a policy, the Company may subject the employee to certain follow-up testing upon return to work following successful completion of a rehabilitation and/or drug treatment program.

The Company should consider including the following provisions in an employee last chance agreement:

1. The Employee must immediately enroll in a qualified program of evaluation and treatment. A qualified program of evaluation and/or treatment can be chosen by the Company or the employee, but it must be approved by the Company. Any cost of rehabilitation not covered by insurance is to be borne solely by the Employee. During Employee’s participation in the qualified program of evaluation and, if necessary, treatment, Employee shall not perform any safety sensitive positions and the Company may prohibit Employee from performing any work at its sole discretion.
2. Upon receipt of satisfactory progress in the program of evaluation or treatment outlined, the Employee must submit to a drug and/or alcohol test in which a negative result is obtained. Once the negative result is obtained, the Employee may commence work at the Company’s sole discretion. However, the satisfactory progress report must be received by the Company no later than thirty (30) calendar days from the date that the Employee was given notice of the positive test result. If more than thirty (30) calendar days elapse, then the Company shall have grounds to discharge the Employee. If a positive test for the use of a controlled substance and/or alcohol is returned after the Employee enters a program of evaluation or treatment, then the Employee shall be immediately discharged.
3. The Employee shall be eligible for reinstatement under this Agreement on a one-time basis, and the reinstatement is contingent upon the Employee returning directly to work for the Company.
4. Upon reinstatement the Employee shall be subject to no less than six (6) additional tests for drugs and/or alcohol without prior notice to occur within six (6) months of the reinstatement and shall be subject to no less than six (6) additional tests for drugs and/or alcohol without prior notice to occur within six (6) to twelve (12) months after reinstatement. For the twelve (12) months thereafter, Employee shall be subject to no less than three (3) additional tests for drugs and/or alcohol without prior notice.
5. If the Employee refuses to be tested under any of the provisions of this Agreement, or if the Employee tests positive, the Employee shall be immediately discharged.
6. Employee understands that he/she will be terminated immediately if he/she: 1) refuses to submit to testing, 2) tests positive for the presence of illegal drugs or has a blood alcohol concentration of .04 or greater, or 3) submits a “cold” sample as determined by the certified specimen collector or an “adulterated” sample as determined solely by a certified testing laboratory.
7. Employee agrees and understands that the Company may conduct searches on its property, including inspection of the Employee’s vehicle, locker, desk, briefcase, packages, etc. Employee understands that refusing to submit to a search or inspection when requested by management will be cause for immediate discharge. Employee also understands that any illegal substance found on Company property may be turned over to appropriate law enforcement authorities for investigation and possible criminal enforcement action. Employee acknowledges that he/she has no expectation of privacy to any property that may be located at or on the Company’s property.
8. Employee understands that he/she may be terminated if he/she violates or revokes any paragraph of this Agreement.
9. Employee understands that drug tests will be conducted to screen the presence of the following drugs and their metabolites: Marijuana, Barbiturates, Benzodiazepines, Cocaine, Opiates, Methadone, Amphetamines, Methaqualone, Phencyclidine (PCP) and Propoxyphone.
10. Employee consents freely and voluntarily to the Company's request for a urine and/or breath specimen now, or at any time during his/her employment with the Company. Employee hereby releases and holds harmless the Company and its employees and agents from any liability whatsoever arising out of or connected with the testing or his/her specimen. Employee has read and understands this Agreement and certifies that he/she is entering into it freely and voluntarily after a reasonable opportunity for deliberation. Employee also certifies that he/she has not used any illegal drugs or consumed any alcohol in the last twenty-four (24) hours and that he/she is legally competent to execute this Agreement. He/she understands that his/her employment is at-will, and therefore he/she or the Company may terminate his/her employment with or without cause and with or without advance notice.

V. Impact of Medical Marijuana
On August 1, 2013, Illinois Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) making Illinois one of 22 states to enact some form of medical marijuana legalization. As of January 1, 2014, the Law is currently in effect. Under the law, employers may: (1) prohibit employees who are registered users from using, possessing, or being impaired while on the employer’s premises and during hours of employment, and (2) enforce drug testing policies, including zero tolerance and drug free workplace, if applied in a non-discriminatory fashion. However, employers are prohibited from discriminating against registered users under the Use of Medical Cannabis Pilot Program Act.

Under the Act, employers may discipline employees who they have a good faith belief are impaired at work. The Act provides a list of symptoms that an employer may use to determine if an individual is impaired, including:
• Decreased or lessened performance of job duties;
• Impaired speech, physical dexterity, agility or coordination;
• Demeanor or irrational or unusual behavior; or
• Negligence, carelessness or disregard for safety of self or others.
However, before disciplining an employee based on symptoms, an employer must provide the employee a reasonable opportunity to contest the basis of the determination.

Sample language to consider including in your drug and alcohol policy regarding state and local marijuana laws is as follows: “The Company recognizes that certain states and municipalities may allow the use of cannabis through a valid prescription. These laws permit an individual with a qualifying debilitating medical condition to register as a medical marijuana patient and avoid civil and criminal penalties under state or local law for certain medical uses of marijuana. However, in accordance with all applicable laws and recognizing developing legal trends, and in order to maintain a safe, efficient and effective workforce, employees may not use or possess marijuana on Company property or in the course of their employment. The Company also prohibits employees from reporting to work under the influence of marijuana to any extent that may have any effect on the employee’s ability to safely, effectively and productively perform work functions or job duties as determined by the Company’s independent Medical Review Officer.”

Employers should be aware that the Act infers the ability to file causes of action by stating there is “no cause of action against an employer who discipline an employee based on a good faith belief that the registered user was impaired.” Thus, employers must be careful when applying their drug and alcohol policy that it is done in conformance with the law and each situation is handled in conformance with the Company’s written policy.

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