Remote and hybrid working have given rise to an increasing number of employees using and abusing drugs and alcohol – out of view of co-workers and management – while on the job. A recent Sierra Tucson survey reported that 20% of U.S. workers admitted to using recreational drugs while working remotely and 22% of employees surveys admitted to being under the influence during virtual meetings, while a May 2022 study by the Federal Reserve Bank of Atlanta estimated that as many as 27 million working age (25–54) Americans have substance abuse disorders–a 23% rise since pre-pandemic times.
With these previously undetected habits now coming to light as workers put in more face time at the office, Terry Bonnette, a partner at Detroit-based management side labor and employment law firm Nemeth Bonnette Brouwer PC, said his firm has seen an uptick in requests for guidance on how to appropriately carry out reasonable suspicion and testing procedures and upgrade employee handbooks and policies to make sure substance use and abuse policies apply to remote workers. Bonnette will be speaking on the topic at the ASE Employment Law Briefing 2023 on September 27 in Troy, Michigan.
“The social isolation created by the Covid-19 pandemic enhanced opportunities for workers to avoid repercussions of using drugs or alcohol while working—and employers are just now getting an inkling of how significant this issue has become as people return to the workplace,” Bonnette said. “It’s also one of the reasons that establishing reasonable suspicion is coming into play more, and why employers who have reason to believe an employee is under the influence while at work need to have solid procedures and drug testing in place, while also being in compliance with the Americans with Disabilities Act.”
Reasonable suspicion that an employee is under the influence typically justifies testing, but it may be necessary to distinguish between the use of illegal drugs and alcohol because they have different parameters.
“Reasonable suspicion is typically based on an articulable belief that an employee is under the influence of a controlled substance drawn from particularized facts and reasonable inferences, such as observations, a pattern of erratic behavior, a credible source independently corroborated, evidence of a tampered drug test, and a urine specimen outside the 90°-100° Fahrenheit range,” Bonnette said. “Also, best practice would indicate that two or more supervisory or management personnel should agree that this testing is called for.”
For remote workers, signs that may alert employers to substance abuse issues include:
• Distant/irritable conduct during meetings/evaluations;
• Dramatic inconsistencies in work product;
• Mistakes in judgment;
• Lack of punctuality or inconsistent clock-ins;
• Vague excuses/complaints to justify behavior;
• Refusal to turn on the camera during remote meetings;
• Decreased responses or changes in communication patterns;
• Consistent lack of availability.
Then, there’s the unique case of marijuana use.
“Federal law does not make a distinction between marijuana and other schedule-one drugs, which means the ADA permits, but does not require, testing of employees for marijuana, and the test need not be job-related or consistent with a business need,” Bonnette explained, adding that in Michigan employers may generally take adverse employment action against an employee testing positive for marijuana but that is not true in all states.
Bonnette’s most repeated advice for employers? Document, document, document.
“From company policies and employee handbooks, to corroborating witness accounts, to the employee’s response to testing, and any Employee Assistance Plan (EAP), documentation will help ensure employers are taking the right steps for action—both in testing and counseling,” Bonnette said.
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