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HR Basics Primer for Reasonable Suspicion in Your Workplace

November 13, 2018 | Debbie Caporusso

The U.S. Occupational Safety and Health Administration (OSHA) reports that in approximately 10% to 20% of work-related deaths, victims tested positive for drugs or alcohol. Furthermore, they found that 40% of all industrial workplace deaths were caused by substance abusers. It’s not only being under the influence that proposes a serious danger. Workplace accidents caused by even just a hangover are five times likelier to injure a person.

Whether your employees are operating heavy machinery, driving work vehicles, or are simply responsible for showing up and reporting to work on time, you’ll need to understand what’s involved in preventing dangerous behavior that could impact not only an employee’s safety and performance, but that of others. If you suspect an employee of substance abuse, there are rules and requirements meant to protect and guide you on the next course of action, starting with reasonable suspicion.

What is Reasonable Suspicion?

Reasonable suspicion testing, also known as for cause drug testing, is performed when supervisors have evidence or reasonable cause to suspect an employee of drug use. For non-regulated testing, an employer has the ability to create their own definition of a reasonable suspicion test.

Process and policy are both critical when it comes to drug testing based on reasonable suspicion. It’s important to have a protocol for handling these cases in the workplace in order to avoid having legal action taken against you or your company. Here, we’ll cover policy, statements, documentation, assessment, and having a established process of immediate drug testing and transportation of the employee who you have identified.

1. Have a bulletproof drug-free workplace policy. According to the Council on Alcohol and Drugs, a drug-free workplace is a place of business where “all employees adhere to a program of policies and activities designed to provide a safe workplace, discourage alcohol and drug abuse and encourage treatment, recovery and the return to work of those employees with such abuse problems.” An employer can achieve this by putting a drug-free workplace policy into place that outlines all rules and regulations regarding what happens if an employee is suspected of drug use, and the subsequent course of action. Because the workplace is one place where adult education can be required, a drug-free workplace policy can make employees more informed and create an all-around more positive work environment for everyone.

Depending on what state you live in, having a written drug-free workplace policy could be required by law, according to SHRM. However, even if it isn’t, it’s still considered best practice. Your policy should cover:

  • When employees will be tested.
  • Who the policy applies to.
  • What they will be tested for.
  • Why they will be tested.
  • The various testing procedures.
  • What happens if the test comes back positive.
  • What constitutes refusal to submit to a test.
  • The consequences of refusing to submit to a test.

The last two are especially important, because an employee may delay taking a test in an attempt to let the substance get out of their system. This could affect the test results, so your policy should clearly state how quickly an employee is expected to submit to a test and what counts as a refusal.

2. Always have witnesses. If you notice strange behavior from an employee, make sure you have at least one other witness to support your story — a supervisor, manager, or head of human resources, ideally. Suspicious behavior can come in three forms: physical, behavioral, and psychological. Physical signs include slurred speech, bloodshot eyes, dilated pupils, and a lack of coordination. Behavioral signs might mean a decline in performance or problems with prompt attendance. Psychological signs include erratic mood swings and a lack of focus.

Note that drug tests shouldn’t be done based on a gut feeling, rumors, or anecdotes; reasonable suspicion means the employee has said or done something to indicate they may be under the influence. Another cause for suspicion may be a report from another member of your staff claiming someone is in possession of drugs on the property. (Be sure to include this in your policy, as some employees may be under the impression that simply carrying drugs isn’t a problem in and of itself since that doesn’t imply they’re under the influence.)

3. Document the behavior. Once two or more members of your staff have observed and documented these signs, if they believe they have probable cause, you can move forward and request the employee to submit to drug testing. Again, it’s important to remember that you must act on facts and first-person observations, not on rumors or anecdotes. Additionally, there are other medical conditions that could make a person seem impaired, such as low blood sugar (which can cause slurred speech or fainting) or prescription medication. Documentation is important in these cases, because your employee must be given the opportunity to explain their behavior (see the next step).

4. Take action. If the employee is in a safety-sensitive area, or is otherwise posing a potential threat to themselves or anyone else, they should be removed immediately and taken someplace safe, like an office or a conference room. Next, act in accordance with your drug-free workplace policy. There should be step-by-step protocol detailing how management is to respond in the event of this type of situation. Consider some of these steps, based on information from SHRM:

  • Meet with the employee face-to-face. Management and HR, at the least, should sit down with the employee to share their concerns and the behavior they’ve documented. If you did not already get consent from the employee to administer drug testing when they were first hired, you should be prepared with a form to have them give consent at this meeting. This is also an opportunity to hear their side of the story. As mentioned above, other medical conditions can impair someone’s behavior and it’s just as important (though not actionable) to help your employee address any other health issue that is technically legal, but causing impairment.
  • Provide transportation. If someone is potentially under the influence, you don’t want them leaving your place of business behind the wheel. This could mean you provide a cab for them. Another option is to arrange to have a member of the staff, like a manager or director, drive them where they need to go.
  • Have the employee get their drug test and respond accordingly. This should be done as soon as possible because the window for testing for the presence of certain drugs and alcohol can be just hours. Contact the closest drug testing location to request a drug test. Arrange to have the cab (or other designated person) take the employee directly to the drug testing center, and be sure the employee also has a ride home for afterward.

5. Act on the results. If an employee’s results come back negative, he or she should be allowed to return to work immediately, and they should be compensated for any hours they were required to miss. If the test comes back positive, again, you should refer to your drug-free workplace policy. Maybe yours addresses counseling or treatment, with the possibility of returning to work on the condition that they follow your policy. Next steps could also include suspension or termination.

Know Your Local Drug Testing State and Local Laws 

Finally, it is critical to become familiar with the state and local testing laws applicable to your workforce. Some jurisdictions regulate the types of testing that may be conducted, the specimens and drugs that may be tested, the requirements for notifying employees of positive test results, as well as the disciplinary consequences that may be imposed for testing positive. For example, five states do not permit employers to fire an employee who tests positive for the first time. This is where it’s extremely helpful to rely on your background screen partner or vendor. Companies like Cisive make it their business to stay on top of the most recent legislation, can ensure compliance, and can even assist you in developing a policy for drug testing as well as training your HR team and management on reasonable suspicion.

 

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