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The 12 Most Common Employer Mistakes in Addressing Substance Abuse in the

Workplace

May 10, 2011

Presented By: Mark A. de Bernardo, Esq.

Jackson Lewis LLP

Association of Corporate Counsel www.acc.com

How big a problem?

•  12.9 million employees in the United States are current illicit drug users

•  66.6 percent of all current illicit drug users are employed either full- or part-time

Goal is…

Keep them out of your workplace

Secondary Goal is…

Get them to work for your competitor

Actual Goals •  Deterrence •  Detection •  Minimizing costs of substance abuse •  Minimizing legal vulnerability

Be effective at substance-abuse prevention…

and be as invulnerable as possible

to legal challenge

Most Common Mistake #1:

Implementing a “Fitness-for-Duty” Policy

These words should never be in your policy: •  “Unfit for Duty”

•  “Fit to Work”

•  “Under the Influence”

•  “Impaired”

Solution:

•  Prohibit the illicit use of drugs. Period. You are justified in taking adverse employment action based on illegal conduct. You can “discriminate” against those who engage in criminal behavior.

Most Common Mistake #2:

Limiting Prohibitions to “On-the-Job”

Related, but different •  Why paint the Company into a corner? •  Why raise the employer’s burden of proof so high

and so unnecessarily? •  Should not care where or when the illegal conduct

occurred •  Its impact on the workplace can transcend this issue

Solution:

•  No “on-the-job” qualifier •  Do not give a time or place limitation •  Again, prohibit illicit drug use – period

Most Common Mistake #3:

Failing to Justify the Policy Up Front for Safety and Health Reasons

•  The words “safety and health” should be in the first sentence of your substance-abuse-prevention policy:

•  “XYZ Company is committed to protecting the safety, health, and well-being of its employees and all people who come into contact with its workplace(s) and property, and/or use its products and services.”

Most Common Mistake #4:

Leaving Loopholes in What is Prohibited

•  Many employers prohibit “the use and possession of illegal drugs on the job”

•  That is not enough

“XYZ Company strictly prohibits the illicit: •  Use, •  Possession, •  Sale, •  Attempted Sale, •  Purchase, •  Attempted

Purchase,

•  Conveyance, •  Distribution, •  Transfer, •  Dispensation, •  Cultivation, or •  Manufacture…

…of illegal drugs, intoxicants, or controlled substances in any amount or in any manner.”

Most Common Mistake #5:

Failure to Effectively Lay Out the Penalties for a Policy Violation

Message is Everything •  To have a deterrent effect, employees

have to get the message

•  The message is: We strive to maintain a drug-free workplace. If you don’t…you’re out.

•  Too many employer policies ring hollow…no clear message…no threat…no clearly stated reason to take it seriously…no accountability… and, therefore…

… the deterrent impact is diluted

•  “Any violation of this policy will result in adverse employment action, up to and including termination of employment…”

“… and referral for criminal prosecution.”

•  That’s a closer

Most Common Mistake #6:

Blending the Policy and the

Manager/Supervisor Guidelines into One Document

•  They are two documents

•  Many employers think they are one

•  They are not

Most Common Mistake #7:

Having Post-Accident Testing Policies

What is wrong with that? •  Should be Post-Incident to cover the “near-misses”

•  “An accident or near-accident which caused, or could have caused, a fatality, serious injury, or significant property damage…”

Most Common Mistake #8:

Failure to Penalize Non-Cooperation

•  A “refusal-to-test” should result in immediate termination of employment

“Refusal-to-test” includes: •  Failure to appear for a test within a

reasonable time period – without proper explanation – after being directed to do so;

•  Any attempt to adulterate, substitute for, tamper with, and/or otherwise invalidate a test sample; and/or

•  Failure to otherwise cooperate in the testing program

Most Common Mistake #9:

Over-promising EAP Coverage

•  Some large, sophisticated companies have policies which effectively guarantee “one free bite of the apple”

•  Adverse employment action for a first offense essentially is self-prohibited

Absolutely the wrong message… •  Some employees won’t take the policy

seriously until after they’ve been “caught” once

•  Moreover – there are lots of situations where termination is justified on a first offense

Most Common Mistake #10:

Poor Timing of Preemployment Tests

•  Preemployment drug tests of job applicants should only be required of those given a conditional offer of employment (typically conditioned on confirmation of résumé data, checking with references, and the passage of a drug test)

•  Many times, the employee starts actual employment prior to the preemployment test and/or test results… A bad idea

Most Common Mistake #11:

Implementing a Never-Again Policy

“Never say never”… •  An employee or a job applicant who tests

positive and is terminated or denied employment cannot be told that he or she is ineligible to apply for reemployment/ employment

•  The Americans with Disabilities Act requires employers not to discriminate based on disability status or perception of disability status

•  It is best to disallow reapplication for employment for a reasonable period of time, such as six months.

•  One year may be too long a

prohibition

Most Common Mistake #12:

Letting Employees Who Should Be

Fired for Other Reasons “Off the Hook” because of a Substance-

Abuse-Prevention Policy Violation

•  Employees who deserve to be fired should be fired. A drug or alcohol “problem” should not be used/misused to save their jobs

•  So often an employer, in good faith, refers a

troubling, under-performing employee for a “for-cause” test when there is a substantial basis for a termination independently. The “good faith” can come back to haunt

Bonus Topic:

“Medical marijuana” and its impact on workplace Substance-

Abuse-Prevention policies

•  In 1972, Congress placed marijuana in Schedule I of the Controlled Substances Act because it considered marijuana to have “no accepted medical use”

•  The Americans with Disabilities Act (ADA) expressly

excepts current illegal drug use from coverage •  “Medical marijuana” refers to the various state-level

laws which either decriminalize or permit the use or cultivation of marijuana for treatment of certain medical conditions

•  Currently, 15 states (AK, AZ, CA, CO, HI, ME, MI, MT, NV, NJ, NM, OR, RI, VT, VA, and WA) and DC have enacted such laws – although some are very, very limited in scope and applicability –  MD allows for reduced criminal penalties if marijuana use

has a medical basis.

•  Despite several legal challenges, no state law has been found to require employers to accommodate medical marijuana use –  See e.g. Gonzales v. Raich, 545 U.S. 1 (2005); Ross v.

Ragingwire Telecomms., Inc., 70 Cal.Rptr.3d 382 (Cal. 2008); Washburn v. Columbia Forest Prods., 340 Ore. 469 (Or. 2006); Casias v. Wal-Mart Stores, Inc., No. 10-CV-781 (W.D. Mich. Feb. 11, 2011).

•  Arizona’s new law contains language potentially requiring employer accommodation of non-workplace medical marijuana use –  Law passed via voter referendum in Nov. 2010

•  Arizona H.B. 2541 just sent for governor signature “allows employers to take action against employees who are believed, in good faith, to be impaired at work due to prescribed, illegal or synthetic drug use” –  Passed by a 52-8 vote

Best practice:

•  Be consistent and manage your policy and employees uniformly consistent with federal law. Don’t jump onto the “slippery slope” and try to parse one type of illegal drug use from another.

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