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How to Create a Legally Sound Substance Abuse Policy

Bottom Line on Top:

Make it all about fitness for duty, rather than zero tolerance

Although it may sound good, zero tolerance may not be the best foundation on which to build a legally enforceable workplace substance abuse policy. This is especially true in states that have legalized recreational marijuana. The reason drug and alcohol use and impairment in the workplace cannot be tolerated isn’t so much that it’s illegal, but because it renders employees unfit to do their job. In addition to undermining the productivity you’re entitled to expect from your employees, this unfitness for duty may pose a health and safety dangers to not only the employee who’s high but others in the office. Here are 14 things to include in your Substance Abuse and Fitness for Duty Policy, along with a Model Policy you can adapt for your own use.

  1. Policy Statement

Set the tone by stating that workplace substance abuse creates a safety risk and won’t be tolerated. But while laying the legal groundwork for discipline, you should also acknowledge that substance abuse is a health issue and that getting employees the help they need is your ultimate goal [Policy, Sec. 1].

  1. Statement of Purpose

Clarify that the policy is all about ensuring employees are fit for duty at all times (as opposed to ensuring they behave morally and obey the law) [Policy, Sec. 2].

  1. Policy Scope

Explain that the policy applies to all individuals working for your office regardless of employment status or physical location of the work. But also indicate that the policy is subject to the terms of applicable collective bargaining agreements and employment contracts [Policy, Sec. 3].

  1. Definition of “Fit for Duty”

Define exactly what you mean by being fit for duty. Other key terms to define include “substance abuse,” “safety-sensitive job” and “drugs,” the latter of which you should define as including:

  • Narcotics and illegal drugs;
  • Marijuana, whether used or obtained legally or illegally; and
  • Legal prescription and over-the-counter medications and drugs that cause or have the potential to cause impairment and render an employee unfit for duty

[Policy, Sec. 4].

  1. Employees’ Duties

The heart of the policy is the list of employee requirements, including being fit for duty at all times, refraining from using, buying, selling or distributing drugs/alcohol, notifying supervisors of violations and submitting to testing required by office policies [Policy, Sec. 5].

  1. No Exemption for Legal Marijuana

Employees might assume that they’re allowed to use or be high on medical or recreational marijuana if it’s been legalized in the state. Debunk this popular misconception by expressly saying that impairment at work is never justified regardless of whether the marijuana or other substance that causes it is legal [Policy, Sec. 6].

  1. Statement of Support

Restate your commitment to helping employees with substance abuse issues and describe your office’s employee assistance program and other resources for providing s support, counseling, treatment, rehab, etc. [Policy, Sec. 7].

  1. Encourage Self-Reporting

Encourage employees to step forward voluntarily if they have substance abuse issues; indicate that those who do self-report won’t be subject to discipline as long as they were and are fit for duty when they do their job [Policy, Sec. 8].

  1. Fitness for Duty Medical Assessments for Safety-Sensitive Jobs

Establish your right to perform proactive medical assessments before workers are assigned to safety-sensitive jobs. Indicate that assessments will be performed by qualified medical or substance abuse professionals and that you’ll keep the results confidential as required by HIPAA and other applicable privacy laws [Policy, Sec. 9].

  1. Investigation Procedures

Explain how you investigate suspected violations. List investigation triggers, which should include:

  • Complaints, concerns or reports of substance abuse;
  • Declining performance;
  • Erratic behavior;
  • Involvement in safety incidents including near misses;
  • Arrests for impaired driving, drug offenses and similar violations; and
  • Other indications of substance abuse issues or unfitness for duty

[Policy, Sec. 10].

  1. Alcohol & Drug Testing Procedures

Explain your use of testing to enforce the policy. Testing is a complex issue that most organizations address in a separate policy. But, however you do it, be sure to address both the testing involved, i.e., whether for alcohol and/or drugs, and the basis for each kind of testing, including:

  • Pre-employment testing;
  • Random testing; and
  • For-cause testing, e.g., after safety infractions or incidents.

Be sure that your testing procedure aren’t overly privacy intrusive and that you limit the strictest testing to employees with safety-sensitive jobs [Policy, Sec. 11].

  1. Privacy of Test Results

Acknowledge that testing results are privacy-protected information and that you’ll keep them secure and confidential to the extent allowed by the law [Policy, Sec. 12].

  1. Response to Violations

Make it clear that employees found to be unfit for duty will be subject to discipline up to and including termination. Describe your office’s disciplinary procedures. Although zero tolerance is fine as a principle, you need to give yourself the flexibility to deal with each employee on an individual basis which typically includes entering into Last Chance agreements offering reemployment if the employee successfully completes treatment, rehab and other reinstatement conditions [Policy Secs. 13 and 14].

  1. Acknowledgment of Employees’ Accommodation Rights

Last but not least, include a provision acknowledging that addiction and disabling conditions for which legally authorized medical marijuana are used are used are disabilities under federal EEO and state anti-discrimination laws and that you’ll provide reasonable accommodations up to the point of undue hardship [Policy, Sec. 15].











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