Employee Might be Using Drugs – What Next?

02 May 2016

We get phone calls often from employers telling us that an employee might be using drugs.  This is often based on observations of the employer or perhaps another employee stating that so and so is using drugs.  Employers often call us with this dilemma and need assistance on what to do.

A determination for a reasonable suspicion drug test based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee will answer the question.  Often there are no suspicions based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee; so what is the employer to do?   

One employee accusing another of using illegal drugs is not sufficient basis for a reasonable suspicion drug test.  Managers must get involved and observe and evaluate the employee performance.  If there is a performance issue, this should be addressed. Look for abnormal conduct, erratic behavior while at work or significant deterioration in work performance.  Still the issue may or may not be drug use.  A meeting with the employee to discuss performance or conduct is necessary.  This discussion may include questions about the reasons for a performance or conduct problem.

A second meeting might be necessary and perhaps then a reasonable suspicion drug test to rule out that the use of illegal drugs or alcohol is not the issue.  With or without drug or alcohol use the employee’s performance and conduct is an issue that needs to be dealt with.  A company policy should outline consequences of poor performance or conduct (e.g., tardiness, excessive absenteeism, insubordination).  Action must be taken as similar performance issues would not be acceptable for other employees.

This is where management training comes in. Sit down with HR and the employee. Be specific about the issues observed and explain the consequences of any misconduct or poor performance.  Without any evidence supervisors need to be very careful about any accusation of drug use.

You may discipline or terminate the employee if they cannot meet your job performance or conduct standards.  Use progressive discipline to deal with the issue (even if that leads to termination) as you would any other employee. You should thoroughly document all conversations with the employee and any discipline meted out.

Don’t mix up your drug testing policy and your basic employment policies.  Deal with performance and conduct issues, sometimes they are not related to drug or alcohol use.