New England Biz Law Update
DEPOSIT PHOTOS
Josie got used to drinking several glasses of wine during the workday when working 100% remotely for the past three years. There were no colleagues in the room to question her behavior or report her to management, and no supervisor to notice her faltering gait or slurring words. Now, ordered back to the office three days a week, Josie’s secret substance misuse practices are becoming harder to hide.
Pre-pandemic, Jerry was an outstanding employee: motivated, participative and vocal in meetings, and highly visible within the organization. He was generally liked by his coworkers, and he would sometimes join them for drinks after work. It was also no secret that Jerry enjoyed the occasional edible during non-working hours. Now that his job is 100% remote, Jerry no longer initiates contact with his colleagues, is slow to respond to messages and emails, no longer speaks during videoconferences, and during the infrequent times his camera is on during meetings, he looks strangely unkempt. No one has seen or heard of Jerry abusing drugs or alcohol, but his colleagues are starting to wonder about his change in habits.
What’s an employer to do?
Both anecdotal and statistical evidence suggest that remote and hybrid work have given rise to increasing use and abuse of drugs and alcohol while on the job — but out of view of co-workers and management. A recent Sierra Tucson survey reported that 20% of U.S. workers admitted to using recreational drugs while working remotely and 22% of employees surveyed admitted to being under the influence during virtual meetings. 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.
The social isolation created by the Covid-19 pandemic enhanced opportunities for workers to avoid the repercussions of using drugs or alcohol while working. With these previously undetected habits now coming to light as workers put in regular face time at the office, law firms are seeing an uptick in requests from employers seeking guidance on how to legally address such situations.
Establishing reasonable suspicion
On an individual basis, establishing reasonable suspicion is key to addressing substance abuse issues, and employers that have reason to believe an employee is under the influence at work need to rely on solid drug testing procedures that are compliant with the Americans with Disabilities Act, or ADA. This means, in part, that employee handbooks and policies need to be reviewed or updated to ensure that substance abuse policies apply not just to employees working on site, but also to remote workers.
Testing for substance abuse is considered a medical inquiry under the ADA; therefore, the test must be job-related and consistent with business necessity. 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.
For example, according to the EEOC’s Technical Assistance Manual, employees who currently use alcohol are not automatically denied the protection of the ADA if they are qualified to perform the essential functions of their jobs. An employer may nevertheless discipline or discharge employees whose current use of alcohol adversely affects their job performance or behavior to the extent it renders them unqualified for employment. On the other hand, current illegal drug use is not protected by the ADA, even though recovering addicts are protected.
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. Best practices suggest that two or more supervisory or management personnel should agree that such 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
Unique considerations for marijuana use
Then, there’s the unique case of marijuana use.
Federal law does not distinguish between marijuana and other schedule-one drugs, which means the ADA permits, but does not require, testing of employees for marijuana. Therefore, the test need not be job-related or consistent with a business need.
The most repeated advice for employers is to 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, or EAP, documentation will help ensure employers are taking the right steps for action — both in testing and counseling.
Terry Bonnette is a partner at Detroit-based management-side labor and employment law firm Nemeth Bonnette Brouwer.
