When the manager suspects a staffer of drug or alcohol abuse, a lot of factors come into play.
Yes, a medical office can require drug testing and terminate the staffer. But the manager needs to be aware of all the issues that can enter into that picture, says attorney Jeffrey M. Schlossberg of Ruskin Moscou Faltischek in Uniondale, NY.
Approach the staffer in the wrong way and the office could see a discrimination claim.
Don’t mention the obvious
The safest approach is to not to mention alcohol or drugs at all but to focus solely on the performance.
That’s where employers most often get into trouble, Schlossberg says. They suspect alcoholism or drug abuse “and they infuse that into their analysis.” And they make mistakes.
In some situations, the Americans with Disabilities Act protects alcoholism, and some states provide even broader protection. Someone taking narcotics for an illness could also have ADA protection.
Thus, if the manager brings up the suspicion of alcoholism and later fires or demotes the staffer, the office could see a discrimination claim.
People know not to say “your hair is thin so you must have cancer.” But they don’t always know that the same applies to alcoholism. To say “it looks like you’re drunk” or “it looks like you have an alcohol problem” is the equivalent of saying “it looks like you have a disability.”
And that puts the office at risk. Under the ADA, if an employee is perceived as having a disability, disability protection applies.
Talk about the job instead
The safest approach when there’s suspicion is to look at the performance and nothing more.
Ask “what is it this employee is not doing?” The staffer may be coming to work late or not submitting reports or sleeping at the desk. Talk about that. Any job requirement that isn’t being met is something the manager can talk about and discipline for.
“Don’t be a therapist,” he says. “Focus on the job.”
It doesn’t matter if someone is on drugs on not. The question is whether that person is or isn’t doing the job. If the performance isn’t up to par, there’s no need to know the why of it.
No matter what disease or disability an employee may have, “nobody is excused from not performing the job properly.” Address performance and there can never be any argument of discrimination.
Not without a hitch, however
Even so, nothing is failsafe.
What if the staffer comes back with “well the reason I’m not coming in on time is that I have alcoholism.” Or maybe the staffer is taking narcotics lawfully to treat a medical condition.
Now the office is on notice of a protected condition. And in some situations, it could be required to make a reasonable accommodation for that staffer.
An overall policy
What about immediate firing for alcohol or drug use?
The office can do that, Schlossberg says.
However, there’s no law that prohibits drinking on the job, so for protection, the office needs a policy forbidding alcohol and drug abuse at work.
With policy in hand, the manager can say “you were drinking on the job, and that’s a violation of our policy” and fire freely. The firing can in no way be related to a disability.
What about drug testing?
Drug testing is another factor. Can the office require it when someone is suspected of illegal use?
“It depends on what the facts are in the workplace,” Schlossberg says. And there’s argument against it.
From an employment law perspective, the office “is not the police or the district attorney” who needs that information to prosecute a case. It is a private employer, and as such doesn’t need to know about anything except an employee’s performance. If there are specific things such as tardiness or mistakes, there’s no need to for a test. Terminate the employee for the inadequate performance.
Another argument against testing is that it could unearth information the office doesn’t need to know about such as that the staffer is taking medication for cancer or HIV.
A medical office, however, is a special type of workplace because patient safety is at issue. The same is true in, say, a manufacturing plant where employee safety is at issue.
When safety is a concern, a drug test is appropriate.
But even there, be cautious. Schlossberg cites two safety steps the office needs to take.
First, have a written policy saying the office can require drug testing at any time and for any reason. As long as the testing isn’t based on race or age or gender or whatever, the office is free to test.
And second, get a third party to do the specimen collecting and also the testing. “No matter how many urinalyses the office does, don’t do it on employees.”
There’s always the possibility the employee will claim the results were manipulated.
Responding to a complaint
One last question is how to respond when a staffer comes to the manager with a suspicion that someone is abusing alcohol or drugs.
The safest response, he says, is to find out the facts. Ask “what are you basing this on? what did you see? what did you hear?
If it turns out the staffer took drugs from the drug cabinet, that warrants immediate termination.
But if the staffer was drinking vodka before coming to work, stay on the safe side and go into the how-is-this-affecting-the-job mode.
Employees may not be able to come to work under the influence of alcohol, but there’s no law that says they can’t drink outside of work. Performance is what counts. If the employee is falling asleep at the desk, “it makes no difference” if it’s because of fatigue or because of drunkenness. Discipline is warranted.
