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Issues and Challenges Regarding Drugs and Alcohol in the Workplace

INTENDED AUDIENCE: Public Agency
CATEGORY: Employment Law, Public Agency

As the California Court of Appeal has noted:

“In light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees – increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover – an employer, private or public, clearly has a legitimate . . . interest in ascertaining whether persons to be employed in any position currently are abusing drugs or alcohol.”

Substance abuse costs businesses at least $100 billion annually in absenteeism, injuries, medical liability and health care costs. About 8% of full-time workers and 9% of part-time workers are illicit drug users. Approximately 6.2% of full-time employed adults are alcohol dependent. Research confirms that worker drug use and heavy alcohol use are associated with lower productivity, employee absenteeism, workplace accidents and higher health insurance costs. The additional costs to employers in terms of damages resulting from employees under the influence of drugs and/or alcohol cannot be estimated.

Drug and alcohol abuse in the workplace presents two overarching challenges for the public employer:

  1. Knowing what steps the agency must take under the law to address substance abuse in the workplace; and
  2. Identifying the legal and practical matters an agency should consider before undertaking permissible measures to prevent and remedy drug and alcohol abuse.

The specific legal issues with which employers must be familiar include:

  • Employee privacy rights under both California and federal laws;
  • Legal limitations imposed by the Americans with Disabilities Act (ADA), the Fair Employment and Housing Act (FEHA), and the Rehabilitation Act;
  • Employer obligations under the U.S. Department of Transportation regulations;
  • Federal and California Drug-Free Workplace Act requirements; and
  • Areas of potential liability under California common law.

Indeed, attempting to strike a balance between an employer’s right to maintain appropriate standards of performance in the workplace and an employee’s rights to privacy, due process, and freedom from discrimination often result in employment disputes and litigation. A balancing must occur at every step of the employment process, from the pre-employment application through termination, in order to minimize disputes. This workbook examines this process and provides an initial guide to balancing employer interests and employee rights in addressing drug and alcohol abuse in the workplace.

Topics Include:

  • Addressing Drug and Alcohol Issues Through Preventive Measures
    • Pre-Employment Preventive Measures
    • Preventive Measures for Current Employees
    • Checklist for Pre-Employment, Pre-Promotion, and Periodic Drug and Alcohol Testing
  • Addressing Drug and Alcohol Issues in the Workplace When Preventive Measures Have Not Been Successful
    • Reasonable Suspicion Drug Testing
    • What Should the Employer Do Once it has Reasonable Suspicion that an Employee is under the
    • Influence of Drugs or Alcohol at Work?
    • What Should the Employer Do Once it Confirms Positive Test Results or that an Employee has a
    • Drug or Alcohol Abuse Problem?
  • Employers’ Statutory/Regulatory Obligations with Respect to Drug and Alcohol Issues in the Workplace
    • The Federal Drug-Free Workplace Act of 1988
    • The California Drug-Free Workplace Act of 1990
    • Department of Transportation Drug and Alcohol Testing Regulations
    • Proposition 64
  • Establishing a Drug and Alcohol Policy
    • Authority of an Employer to Prohibit Drug or Alcohol Use
    • Drafting a Policy
    • Checklist for Drafting a Drug and Alcohol Abuse Policy
    • Duty to Bargain Over Implementation of Drug and Alcohol Testing Policy
    • Describing the Substances for Which an Employer Will Test
    • What Kinds of Drug and Alcohol Tests are There?
    • Choosing a Reputable Testing Facility
    • Establishing Testing Methods and Objectives
    • Using the Least Intrusive Means
    • Apply Testing Evenhandedly
    • Confirm Positive Test Results
    • Keep Test Results Confidential
    • Training Supervisors and Management Personnel on All Aspects of Drugs and Alcohol Problems
    • Notifying Employees of Drug Testing Policy and Explaining Its Purpose

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