In the wake of a national opioid crisis, and as more states legalize the use of recreational marijuana, employers are asking “How should our policies address drugs in the workplace?” Guest blogger John Kuehn, a partner and employment-law attorney at SouthBank Legal, offers these steps employers can take for avoiding legal problems.
Continue to enforce a drug-free workplace.
Employers have good grounds to continue requiring a drug-free workplace. Marijuana is still illegal on the federal level, and drug use can put both a user’s and co-workers’ safety at risk. Moreover, employees working under the influence of drugs or alcohol may:
- Perform poorly and struggle with productivity.
- Frequently call off work or arrive late to the workplace.
- Frequently change workplaces.
In addition to these issues affecting all businesses, employers with federal contracts also must maintain and enforce a drug-free workplace policy. This is a condition of receiving federal funding.
Set clear penalties.
Clearly stipulate the penalties for policy violations. If your company’s drug-free workplace policy includes a drug-testing program, identify who will be tested, when they will be tested, and what will happen to employees who violate the policy.
Check for state and local guidance.
Some states have specific legal requirements for drug testing employees. Make sure you set up employee drug-testing protocols that adhere to your state’s requirements.
Communicate your drug-free workplace policy to employees.
With the legalization of marijuana in Michigan and Illinois, remind employees that drugs are not tolerated at the workplace. Every employee should receive and sign a written copy of the company’s policy, either as part of an employee handbook or as a stand-alone policy.
Be aware that an employee with an addiction may fall under the Family Medical Leave Act and American Disabilities Act.
The law does not protect employees who are actively using drugs, but addiction is a different matter. In some cases, an employer may need to provide unpaid time-off or accommodations for an employee with this diagnosis to seek treatment.
Employers can lay a foundation for staying on the right side of the law and protecting their workforces by following these basic steps, striving to create programs that are fair, consistent, and supported by all stakeholders, and seeking advice from their trusted advisors such as legal counsel, insurance providers, and employee assistance programs.
About the Author
John Kuehn is a partner at SouthBank Legal: LaDue | Curran | Kuehn. He regularly advises employers on labor and employment law. John frequently partners with Healy Group at seminars to address significant and pertinent human resource and employment issues.