With drug use and overdose deaths skyrocketing in the U.S. over the past few years and confusion over state laws and legalized marijuana, what can employers do to ensure there’s no impairment at work?
In 2022, the U.S. Centers for Disease Control and Prevention (CDC) reported “there were an estimated 107,622 drug overdose deaths in the United States during 2021, an increase of nearly 15% from the 93,655 deaths estimated in 2020.”
To add to the growing substance abuse problem, individual states are causing some confusion over their different approaches to legalizing marijuana.
All of this can leave employers, who realize that impairment is a safety hazard for their workers, feeling helpless.
However, there are still ways employers can address impairment at work, according to law firm Littler Mendelson.
OSHA wouldn’t want to see impaired workers
First of all, don’t forget that OSHA’s General Duty Clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Allowing employees to operate dangerous equipment or vehicles while impaired is certainly a recognized hazard that OSHA wouldn’t want to see during an inspection.
ADA allows employers to prohibit drugs, alcohol at work
The Americans with Disabilities Act (ADA) also allows employers to “prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees.” The ADA also states that employers may “hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.”
To put it plainly, an employer doesn’t have to accommodate impairment in the workplace. If an employee is currently abusing drugs, an employer doesn’t have to show impairment to discipline that worker under the ADA.
State laws may require proof of impairment
Keep in mind that state laws may require proof of impairment when it comes to marijuana, however.
That’s why it’s still important for an employer to understand whether the impairment is related to a substance use disorder. Depending on the state, the employer may need to show that the employee either used or possessed marijuana or marijuana products during the workday or was impaired while working, Littler Mendelson states.
Making the determination that an employee is impaired isn’t always easy. Marijuana use in particular can be much harder to detect on an employee than alcohol. And an employer wouldn’t want to erroneously accuse an employee of impairment, as the ADA includes protections for employees who are wrongly accused.
4 appropriate, legally defensible steps employers should take
What are the most appropriate and legally defensible steps an employer can take if they suspect an employee is impaired?
According to Littler Mendelson, employers should:
- have a clear policy that’s distributed to all employees and posted in the workplace prohibiting employees from working while impaired
- have an evaluation and testing protocol so supervisors and managers know exactly what to do when they suspect that an employee is working while impaired
- train employees on the policy and teach them how to recognize, report and contemporaneously document impairment, and
- have supervisors and managers partner with human resources personnel to ensure investigations are fair and focused on evidence of drug or alcohol use close in time to the suspected impairment.
Once again, employers must keep in mind that state laws vary widely and it may be best to consult legal counsel to make certain that those laws regarding drug or alcohol testing are adhered to.