If you suspect an employee has a substance abuse problem, but you don’t know for sure, only address the issue in the event the employee tells you that they have a substance abuse problem.

Or, if the problem is unavoidably obvious, mention that the company has counseling services available through your employee assistance program (EAP) or talk about outpatient and inpatient detoxification and rehabilitation programs.

Until you have the opportunity to talk to an employee you suspect has a substance abuse problem, keep your discussions with the employee focused on job performance. It’s important to keep track of the good and bad so that you have a record of deteriorating performance, whether due to drug abuse or any other problem.

If an employee asks for leave to enter a residential or full-time treatment program, he or she is most likely entitled to unpaid leave under the Family and Medical Leave Act (FMLA) and under the Americans with Disabilities Act (ADA).

Before the employee enters rehabilitation, the terms of their continued employment should be spelled out in an agreement signed by the employee. Typically, the employee agrees:

• To comply with treatment rules, such as regular attendance at Alcoholics Anonymous or similar meetings.
• To avoid any further use of illegal drugs during the rest of their employment.
• To meet regularly with EAP counselors, who may report any relapses.
• To submit to random, unannounced drug testing for a specified period of time or indefinitely.
• To report to the employer any conviction for drug- or alcohol-related offenses.

The agreement should also spell out the penalties if the employee violates the agreement. Some employers allow employees a second chance at rehab, while others take a relapse as grounds for immediate termination. Whatever the policy, it should be spelled out, so that the employee knows from the beginning what happens if the agreement is violated.

The Americans with Disabilities Act prohibits employment discrimination against employees and job applicants who have successfully completed, or are currently in, a rehab program and are no longer illegally using drugs.

Since the ADA also protects people who are perceived as having a disability, employers risk violating the law if they have blanket policies against employing anyone who has a past history of drug convictions, unless there is a proven, job-related reason for doing so, such as a high degree of safety or security. Each applicant must be evaluated individually on a case-by-case basis.

Sadly, many people who go through rehab and are able to stay clean for a while then relapse and go back. There are no hard and fast rules about this under the ADA but, logically, if the person has remained employed and has relapsed, then they have arguably engaged in drug use while employed.

In that case, they are no longer protected by the ADA, which protects only those who are no longer using illegal drugs. When this issue has reached the courts, most have said that one chance at rehab is all the employer is legally obligated to provide.

Need guidance on implementing or maintaining a drug-free workplace policy? Contact Kellie with Alternative HR at 717-855-5589 or kellie@alternative-hr.com for assistance.

About Kellie Boysen – Owner, Alternative HR:

Kellie Boysen is a certified Professional in Human Resources (PHR) with more than a decade of HR experience. She owns Alternative HR, a local human resource consulting and outsourcing organization that is dedicated to providing small business owners with an affordable alternative to hiring a full-time HR professional.