When it comes to running a functional and productive workplace, drugs and alcohol can cause any number of problems: lost productivity, excessive time off, workplace accidents, employees behaving badly while under the influence, etc. As we keep reiterating in this series, as an employer, you can be held vicariously liable for everything that your employees do when they are acting in the course and scope of their job duties. And if you think this is just a problem for someone else’s small business or non-profit, think again. Statistically, substance abuse is more of a problem at smaller businesses than larger ones precisely because small businesses are less likely to have drug-free workplace policies in place.
Add in the trend towards legalizing marijuana and small businesses can find themselves caught in a tough place. There’s a tension between being a “friendly” small business employer and making sure your employees can do their best work. After all, you’re not trying to be traditional, “stuffy” corporate America, but you don’t want to face a lawsuit caused by an employee’s bad behavior (especially one caused by an employee being under the influence while on the job).
Who should have a drug-free workplace policy?
Certain employers absolutely need to have a drug-free workplace policy, including employers:
Other employers might consider having a policy, even if one is not required for other reasons. For example, you might have concerns about the tendency to consume alcohol at networking events, or you may have strong personal feelings about the legalization of marijuana.
Most drug and alcohol policies are based on the requirements of the Drug-Free Workplace Act of 1988. Technically, this law only applies if your business receives a federal contract for $100,000 or more or your non-profit receives a federal grant of any amount. However, you should also consider a drug-free workplace policy if you are applying for the Ohio Bureau of Workers’ Compensation (BWC) Drug-Free Safety Program (DFSP). Certain industries (i.e., construction) are required to participate and therefore need a drug-free workplace policy, and other employers participate simply for the premium discounts that are applied to their workers’ compensation insurance.
Generally, your drug-free workplace policy needs to:
At the federal level, your drug-free awareness program must educate your employees about:
Ohio’s Drug-Free Safety Program also has specific requirements about the amount of time and substantive content in your employee education program. The DFSP also doesn’t require you to establish an employee assistance program unless you are an “advanced level” employer.
What about drug testing?
You may have noticed that the Drug-Free Workplace Act does not require drug testing. However, certain agencies (including the Department of Defense, Department of Transportation, and the BWC when you are participating in the Drug-Free Safety Program) do impose drug testing requirements. Ohio law permits all employers to drug test applicants after an offer of employment has been made and only if they were given advance notice that a test would be required as a condition of employment.
Similarly, Ohio law permits drug testing employees if you have a written policy and then only in specific situations:
Drug testing is a very tricky area of the law, especially because of the privacy concerns that a drug test raises. When it comes to the actual testing, you should work with a certified drug testing service provider. To that end, your drug-free workplace policy should be reviewed by legal counsel and your service provider to make sure the policy actually reflects what the service provider will do when conducting a test. Finally, drug test results should be kept strictly confidential.
What do I do about an employee who violates my drug-free workplace policy?
Unfortunately, it depends on the specific facts and circumstances. You don’t want to fire an employee merely because they have had a problem in the past or even because they are currently seeking treatment for a problem.
You also don’t want to immediately discipline an employee for using legal drugs (i.e. prescriptions or over the counter medications) because the employee might be considered “disabled” under the Americans with Disabilities Act, and you might have an obligation to provide a reasonable accommodation. (To be clear, not every instance of drug or alcohol use will give rise to a disability, especially when the drug use is illegal. And while medical marijuana has been legalized at the state level, Ohio law does not require employers to permit the use of medical marijuana under their employment policies.)
But when an employee’s drug or alcohol use impacts their ability to perform their job duties or creates a safety concern, then you absolutely need to take appropriate action. Similarly, when an employee refuses to submit to an otherwise appropriate drug test, you can and should terminate that employee for their refusal.
To discuss the specifics of your workplace: