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What’s Your Policy on Drugs and Alcohol?

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In today’s world, protecting your company, your business, and the public by having a workable drug and alcohol policy is critical, more so now that 20 states have legalized marijuana use. If you are in one of those states, you may need to revise your existing policy to ensure you do not run afoul of your state’s law. But keep in mind, under federal law, marijuana is still an illegal drug, and federal law trumps state law. Generally, that means you have the right to drug test applicants and employees if you find it necessary. However, this is an area where consulting an attorney is essential.

Where to Begin?
The Department of Labor provides a great resource called a “policy builder,” designed to walk you through the important points of a drug/alcohol policy, allowing you to choose what’s right for your company. Here are a few highlights:

  • Start with a defensible purpose for your policy, such as to maintain the health and safety of employees, customers, and the public.
  • State clearly that the use of alcohol and illegal drugs on the job is prohibited, and define “on the job.” Is the policy in force only while employees are in the building, or also on the way to work or in the parking lot?
  • Define the prohibited behavior in terms such as: behavior “affected in any detectable manner by the presence of illegal drugs or alcohol.”
  • Assure employees it is not your intention to interfere with their private lives, unless their off-duty drug and alcohol use affects their job performance and safety.
  • Ensure that your policy provides for employee confidentiality, communicates clearly, and gives employees a way to answer allegations of drug/alcohol use.
  • State whether you reserve the right to search, and where (pockets, purses, desks, lockers, cars, etc.).
  • Inform employees if you intend to drug test, and how a positive test will affect future employment (in accordance with your state law). If you voluntarily drug test, following federal guidelines will keep you on safer legal ground, though this is not required.

Should You Test?
Jim Collison is the president of Employers of America, author of The Complete Employee Handbook Made Easy, and a coach devoted to helping employers navigate employment issues. He sees the cost of drug testing as prohibitive, compared to the benefits. And, in some states, testing for drugs exposes employers to unnecessary legal risks. For example, in Iowa, if your employee fails to pass an employment-related drug test, your company might be on the hook to pay for rehab.

That’s why Collison is not a strong supporter of drug testing. “I always prefer limiting the employer’s obligations in a drug/alcohol policy.” Of course, there are industries or businesses which attract applicants who may be substance abusers. If you decide to test, Collison recommends limiting your legal risk by hiring through an employment leasing agency. The agency does the drug testing, plus you then have several months to observe the employee’s work before actually hiring the person. Keep in mind, the cost to use a leasing agency doesn’t compare to the cost of a bad hire.

Focus on Performance
While you need a drug policy, it’s a mistake for employers to put too much focus on it, says Collison. Rather than making jobs contingent on not violating the drug policy, he prefers to keep the focus on performance. “Put the responsibility on the employee to perform up to your standards. That approach is easier to enforce, reasonable, provable, and reduces the chances you’ll have a defamation lawsuit for falsely accusing someone of drug use.” Of course, a drug/alcohol impaired person is unlikely to perform well.

To illustrate, Collison once hired a young woman who was an admitted substance abuser. He emphasized that he’d give her a chance as long as she met his performance expectations. Her work was excellent, until she began having unexplained absences. Then he warned her, one more such absence, and she would self-terminate. Later, she did miss another day, and lost her job for failing to meet the performance standards. The possibility of drug use was not mentioned, therefore, it posed no legal risk.

“Why make it your headache?” asks Collison. “Spell out your performance expectations clearly, have a multi-step misconduct and disciplinary policy. Then hold the employee to the expected standards.”

It’s obvious the legalized use of marijuana has complicated drug policies for American employers. But again, federal law still prevails, and you still have the right to test applicants and employees if you deem it necessary. Check with your Chamber of Commerce or sheriff’s department if you are not sure what your state’s law allows, in terms of discipline and termination when drug or alcohol use affects the job. Better yet, talk to your attorney.

Teresa Ambord

Posted In: ACCA Now, Legal, Management

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