Balancing Worker Privacy with an Employer’s Rights to Protect Safety

A worker intoxicated or under the influence of drugs on the job can not only be detrimental to productivity, but extremely dangerous to safety of the employee and those around him or her. Maintaining a comprehensive written drug and alcohol policy – covering testing, prevention, and the handling of suspected drug- or alcohol-abuse on the job – is of course very important.

Key elements include:

• Drug Testing – California employees have constitutional rights to privacy. There are detailed court decisions defining the line between an employer’s rights to test for drugs and alcohol and the workers’ rights to be left alone. A workplace policy must accurately reflect that balance. For example, only in very tightly defined circumstances are “random” drug tests ever permitted;
• Legal vs. Illegal Drugs – Written policies should include specific definitions that describe what drugs the company considers to be illegal versus legal. Also, while a business cannot discipline an employee for use of doctor-prescribed medications (including, in California, “medical marijuana”), the policy can and should also specify an employee’s duty to inform management of such drugs if their effects pose a significant safety risk in the workplace;
• Company Culture – Some businesses periodically hold employee functions where alcohol is served. If so, the policy should establish guidelines that address such alcohol use. See also, our blog Office Holiday Survival Guide, A Risky Cocktail: Alcohol and an Employee Party. A company can and should also supply a policy with other “Company Culture” guidelines, including rules and boundaries on entertaining clients; and
• Disciplinary Action – The drug and alcohol policy also should include the standards for disciplinary actions taken should an employee be found in violation. Employers should be aware of potential issues for employees who may have rights under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act , including individuals undergoing treatment for chemical dependency.

We have helped a wide range of businesses to create and update such drug and alcohol policies or to deal with suspected or confirmed substance abuse situations. We are a phone call or email away.

Resources

Institute for a Drug-Free Workplace

United States Department of Labor