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What is the role of the supervisor in making a reasonable suspicion determination?

by | Jan 28, 2022 | 0 comments

What should employers do if they suspect an employee is under the influence of drugs or alcohol at work? This guide presents the steps management should take to properly execute and document situations under a drug and alcohol testing policy. These steps were written with the assumption that the organization has a clearly written drug and alcohol policy that includes drug and alcohol testing for reasonable suspicion. A general policy statement is not enough to permit testing; if the policy does not include testing for reasonable suspicion, employers may want to consult their legal counsel to determine if this is a type of policy their organization should implement.

Step 1: Receive Complaints

Concerns that an employee is under the influence often come from co-workers or even clients or vendors before a supervisor or manager notices. Managers or HR professionals do not want to send an employee for testing based on hearsay or gossip, but they should document the complaint or concerns of co-workers who bring this information forward. Managers or HR professionals should take a few extra minutes to ask what the employee observed, when the employee observed it and if others witnessed or commented on this situation. The employer should also determine if the behavior is new or has happened in the past (possibly indicating a pattern of behavior).

Step 2: Observe the Employee

Firsthand observation should be made by two members of management. Immediately upon notice of this type of concern, the employee’s supervisor, an available manager or HR personnel should go to this employee’s work area for firsthand observation. The observer may be able to view the employee from afar, but usually he or she will need to talk with the employee directly to observe any smell of alcohol, eye dilation, slurred speech or other behaviors. The supervisor, manager or HR professional who performed the initial observation should seek a second member of management or HR to confirm initial suspicions. The second observer should perform his or her own firsthand observation of the employee.

Step 3: Remove the Employee from Safety-Sensitive Areas

If the employee is working around machinery or heavy equipment or is in any other type of safety-sensitive job, or is acting out in a way that appears to be a safety concern for the employee or others, managers or HR staff may need to immediately remove the employee from the work area and ask him or her to wait in a conference room or an office.

Step 4: Document Observations

Both observers should clearly document their observations, including any abnormal behaviors. The observers should be as specific as possible in their descriptions but not attempt to diagnose the situation. For example, an observation may include:

  • Odors (smell of alcohol, body odor or urine).
  • Movements (unsteady, fidgety, dizzy).
  • Eyes (dilated, constricted or watery eyes or involuntary eye movements).
  • Face (flushed, sweating, confused or blank look).
  • Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts).
  • Emotions (argumentative, agitated, irritable, drowsy).
  • Actions (yawning, twitching).
  • Inactions (sleeping, unconscious, no reaction to questions).

Step 5: Assess the Situation

After the situation has been clearly documented, managers or HR staff need to assess what they know and observed to determine next steps. If both observers witnessed behaviors that create a suspicion and the documentation supports this suspicion, then managers or HR may proceed with Step 6. If there is disagreement, managers or HR may need to bring in a third party to also observe and help make a determination. Managers or HR may decide that a reasonable suspicion of use of drugs or alcohol does not exist and that no further action is necessary other than documentation of the complaint and subsequent observations.

Step 6: Meet with the Employee

When reasonable suspicion testing is warranted, both management and HR should meet with the employee. Those leading the meeting should clearly explain what has been observed and documented by management and that, in order to rule out the possibility that the employee is in violation of the company’s drug and alcohol policy, the organization will send the employee for a drug or alcohol test. Explaining it in this manner shows the employee that the employer has not jumped to any conclusions, but is simply following procedures, and if the employee is not under the influence of drugs or alcohol at work, the test will prove this. If the employer has not obtained a drug testing consent previously, the manager or HR staff member should have a consent form available at this meeting for the employee’s signature.

Step 7: Prepare Transportation

Employers should not allow employees suspected of being under the influence behind the wheel of a car; therefore, the manager or HR should ensure the employee does not have to drive to the testing center or home afterward. Often employers coordinate with a local cab company for these types of trips. The cab fees and tip should be paid by the employer. The manager or HR will need to coordinate with the cab company or driver on whether the employer can be billed or must pay upfront. It is a good idea to work out this arrangement in advance so that it is available when needed. Another option, if feasible, would be to have a manager escort the employee to the testing center and drive the employee home afterward.

Step 8: Send the Employee for Testing

The manager or HR should contact the drug test facility to advise that an employee is on the way for reasonable suspicion testing. The employee should be given the number for the cab company to call after the testing to arrange a ride home.

Step 9: Wait for Test Results

The employee needs to know what to do and expect the following day. Company policy should address this situation, but if not, the employer should set a consistent practice. In most cases, the employer does not want an employee to return to work until the test results are available. Employers are not obligated to pay a nonexempt employee for any time or days he or she must spend off work waiting for test results; however, the employer may be required to pay exempt employees for this time off work according to the Fair Labor Standards Act salary basis (29 C.F.R. §541.602).

Step 10: Respond to Employee’s Refusal to Take the Test

If the employee refuses to be tested, the employer should refer to its drug and alcohol policy. A policy may state that this refusal will be treated as a positive drug test result or will result in immediate termination of employment. If the employee refuses a cab and attempts to drive home, the employer should never attempt to physically restrain the employee. The organization should note the employee’s type of car and license plate and contact the authorities to report concern that the employee is driving under the influence.

Step 11: Respond to Negative Test Results

If the drug or alcohol test results are negative, the manager or HR should contact the employee and return him or her to the previous job and work shift as soon as possible. Many employers pay the employee for all work shifts and hours he or she missed while waiting for the negative test results (even if the employee is not required to be paid).

Step 12: Respond to Positive Test Results

Again, the employer must refer to its company policies and precedence. If the organization has an employee assistance program (EAP), it is a good idea to provide contact information for this service regardless of whether the individual’s employment is continued. Depending on company policy, the employer may offer a last-chance agreement allowing the employee to seek counseling, treatment or both and return to work with the understanding that he or she will be terminated if under the influence at work again. An employer does have the option to terminate immediately for positive test results if this is the employer’s common practice, policy or precedence. Organizations may wish to seek legal counsel on how to proceed.

 

 

Thanks for sharing!

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