PROACTIVE PRACTICE MANAGEMENT
 

I suspect one of my employees has a substance abuse problem. What are my options?


Each employer has the right to insist on a drug-free workplace. There are no laws preventing one from combating the use of drugs and alcohol in the workplace. There are, however, some limits on your ability to test employees for drug usage. Legally, you're free to prohibit the use of drugs and alcohol in the workplace, require that an employee not come to work or return from meals and/or breaks under the influence of alcohol or drugs, and require that all employees meet the same performance standards.
Employers needn't tolerate absenteeism, tardiness, poor job performance or accidents caused by alcohol or illegal drug use. Guard against these events with a good policy that is fair and within your legal rights.
One obstacle that gets in the way of drug testing is with workers' rights to privacy. Laws on drug testing vary widely from state to state, and legislators and judges struggle to strike a balance between workers' rights and the legitimate needs of businesses.
In our state, the Arizona Revised Statutes § 23-493 explains our limitations and legal parameters. Here is a summary to start things off.
· Employers with one or more full-time employees must abide by the statute.
· Employers must inform prospective hires that they will undergo drug testing as a condition of employment.
· Employees are subject to random and scheduled tests for any job-related purpose, to maintain productivity and safety, and upon reasonable suspicion.
· The drug-testing policy must inform employees of their right to explain positive results.
· Before conducting tests, the employer must give employees a copy of the written policy. The policy must state the consequences of a positive test or refusal to submit to testing.
So, in direct response to the question heading this article, "Reasonable Suspicion" is your key. However, be careful.
There's nothing wrong with firing an employee or rejecting an applicant who uses, possesses or distributes drugs illegally. This includes the use of illegal drugs and the illegal use of prescription drugs that are deemed controlled substances under federal drug laws.
Example, Quite Bright Smile Centers, a fictitious dental office, fires Hilda after determining that she takes amphetamines without a doctor's prescription. Amphetamines can be legally prescribed, but are classified as "controlled substances" because of their potential for abuse. If a doctor didn't prescribe amphetamines for Hilda, Quite Bright Smile Centers would be justified in firing her for illegal use of drugs.
How did Quite Bright Smile Centers know Hilda was using drugs? The most reliable way to determine that an employee is using drugs illegally is through a drug test.
Most businesses have a policy prohibiting employees' use of alcohol or illegal drugs in the workplace. In addition, some businesses offer employees help in dealing with abuse of these substances, often through an employee assistance program in which the business pays for professional counseling. In my personal experience, dental offices rarely have a written policy on drug testing. And, dental offices may not be prepared to handle the cost of providing help in this regard.
Once an applicant becomes an employee, drug testing gets stickier. Testing is usually permitted when employees have been in an accident or you've seen them bring illegal drugs to work. Your legal right to test at random without a solid written policy signed off by each and every employee is unclear, and questionable.
Recovering addicts are protected within the Americans with Disabilities Act. The Act prohibits you from discriminating against people because of past drug problems. This includes people who no longer use drugs illegally and those who are receiving treatment for drug addiction or who have been rehabilitated successfully.
Pre-employment testing is the safest type of testing from a legal standpoint. After an employee is hired, federal and state laws as well as court decisions control testing. If you decide to test, your primary motive should be to ensure the safety of workers, patients/customers, and members of the general public who frequent your office.

You're most likely to withstand a legal challenge if you limit testing of employees to three situations.
1. Safety and Security. Because a dental office provides hands on health care that carries a risk to the public's safety, you can require periodic testing of your employees.
2. Accidents. You can require testing of an employee who's been involved in an accident. For instance, an employee who accidentally causes injury to a patient or themselves.
3. Retesting. You can require periodic retesting of an employee who is currently in or has completed a drug rehabilitation program, or an employee to whom you've given a second chance. Example: one who tested positive for drugs after a personal injury accident, but was kept on the job anyway.
Even though you have a right in these situations to require a drug test as a condition of continued employment, you can't force an employee to submit to a test against his or her will. You can, however, fire an employee who refuses to be tested if it is in your written policy as a consequence of declining a test.
In general, avoid a policy of testing all employees. Not all of them will be in a position to cause harm through drug usage. Similarly, avoid a program of random drug testing. If you test all employees, test them randomly or test without a good reason, you may get sued for invasion of privacy or infliction of emotional harm.
To keep your drug testing program on a solid legal footing, use a test lab that's certified by the U.S. Department of Health and Human Services or accredited by the College of American Pathologists, keep the results of the drug test confidential, and be consistent in dealing with those who test positive. Also, keep good records documenting why and how tests are administered. Require employees to acknowledge in writing that he or she has been given a copy of the drug and alcohol policy, or include the policy in your employee handbook and obtain a written acknowledgement that the employee has read the handbook.
Alcoholism is treated somewhat differently. A person disabled by alcoholism is entitled to the same protection from job discrimination as any other person with a disability. But, you're not required to overlook the effects that this disability can have on job performance. Under the Americans with Disabilities Act (ADA), you can discipline, discharge or deny employment to an alcoholic if the person's job performance or conduct is so badly affected by alcohol usage that he or she isn't qualified to do the job.
Example: Quite Bright Smile Centers employs Gertrude who often is late for work and sometimes is unable to perform her job up to standards. The employer disciplines her because of her tardiness and poor performance. The company holds Gertrude to the same standards as its other employees and disciplines her in a like way. This doesn't violate the ADA.
Neither the ADA nor its regulations define alcoholic or alcoholism. The lack of definitions may have little practical effect, however, since the ADA allows you to judge the employee by his or her ability to do the job. People who have an alcohol problem aren't legally entitled to any special consideration.
Be proactive in handling the sensitive issue. My "Practice Pointer" today is to establish a written drug-testing policy and have each employee sign off on the written document. Provide this to each applicant so that they too are aware of your position. Follow the guidelines in this article so as to be fair and prudent within your practice.
Here's an example of what I would recommend:


Drug Testing

The aim of random and scheduled drug testing is to ensure a safe and drug-free workplace. The practice will treat all team members consistently and not single out any one person or group.

Prospective employees and team members currently employed may undergo random and scheduled drug testing as a condition of employment. These tests will be conducted for any job-related purpose, to maintain productivity and safety, and upon reasonable suspicion of substance abuse.

Employees have the right to explain positive results. And, before conducting tests, the employees will be given a copy of this written policy, along with the consequences of a positive test or refusal to submit to testing:
· Results of a positive test may lead to termination.
· Refusal to submit to a random or scheduled drug test will be grounds for immediate termination.

I understand the policy stated above, and the consequences of a positive test result and refusal to submit to a random or scheduled drug test.
{Provide lines for employee and employer signature dates of their signatures}

Federal laws on drug testing by and large cover employees who hold jobs in which drug abuse can affect public safety. For instance, the Drug-Free Workplace Act of 1998 requires all contractors with the federal government to certify that they will provide a drug-free workplace. However, the Act doesn't require employers to test employees.
For more information, contact the Center for Substance Abuse Prevention Workplace Helpline at
800-967-5752 during business hours 9 am to 5:30 pm weekdays. Or, go to their website at www.drugfreeworkplace.gov.

Also, for information specific to Arizona law, contact the Industrial Commission at the Arizona Department of Labor in Phoenix at 602-542-4411, or www.ica.state.az.us.