Question

A manager just told me he thinks one of his employees is under the influence this morning.  He said the guy is acting differently – his speech is louder and a little slurred, and he just seems a little out of it.  What can we do about this?  We usually don’t conduct drug or alcohol tests, but we do have a policy that says we can if we have “reasonable suspicion” that an employee is impaired. What exactly is reasonable suspicion? Can we just send him home or do we need more proof?  I am afraid to let him drive if he’s on something.

Answer

First, it is good that the employer has a reasonable suspicion policy in place. Reasonable suspicion is the belief that an employee is under the influence of drugs or alcohol based on observable behaviors or specific facts that suggest impairment. It is not based on speculation, but on tangible and objective signs that the employee is impaired.

Both Massachusetts and federal law allow employers to conduct drug and alcohol testing.  In Massachusetts, courts apply the Massachusetts privacy law (MGL c214,§1b) to balance the employee’s right to privacy with the employer’s interest in a safe workplace when determining whether a test is appropriate in the circumstances.  If the employee works in a safety-sensitive role, the employer’s right to test is greater than it would be for a non-safety-sensitive role like a desk job.

What to Do Next

A second manager should also observe the employee by engaging them in casual conversation. This allows for a fresh, independent assessment of the employee’s condition without making immediate accusations. During this interaction, managers should look for specific behaviors or physical signs that may indicate impairment, such as:

• Erratic or unpredictable behavior
• Behavior or speech that is uncharacteristic of the individual
• Incoherent or slurred speech
• Unusual level of fatigue or drowsiness
• Bloodshot or red eyes

• Dilated or constricted pupils
• Smell of alcohol or drugs

• Disorientation or poor coordination
•  Decreased productivity or performance
• Poor decision-making or judgment

If Impairment Is Confirmed

Suppose the second manager corroborates the first and believes the employee is impaired. The manager should immediately take the employee to a private area and address the employee’s wellbeing.  The manager can say, for example, “You don’t seem to be acting like yourself. Is there something wrong?”  The manager should explain the concerns based on specific observations, rather than making an accusation. This conversation should be non-confrontational and respectful.

Next, the employer should ask the employee to submit to testing.  The employee will have to sign a consent form.  The employer should also arrange transportation to the testing site. It is essential to identify a testing facility in advance. One option may be to talk with the employer’s workers’ compensation carrier for recommendations.

If the employee refuses the test, the manager should remove the employee from the workplace.  Most drug testing policies equate refusal of a drug or alcohol test with a positive result. An employee who is suspected of drug or alcohol use should not drive home. The employer can call an Uber, have a manager drive the employee home, or contact the employee’s emergency contact for a ride.

It is best practice to have two managers document the signs of impairment.  The employer must keep detailed, objective records of the employee’s behavior or symptoms that led to suspicion. This might include other observations the manager has recently noted, such as increased absences, tardiness, or decreased productivity.

Next Steps After Testing

Finally, the employer should proceed with discipline for a positive result or a refusal to test. If the employee admits to a substance abuse problem, the employer might consider offering a last chance agreement, in which the employee agrees to undergo treatment.  The agreement would outline increased monitoring of his performance, including submission to random testing.  Note that while substance abuse can be considered a disability under the Americans with Disabilities Act and Massachusetts law, federal and state law do not require employers to tolerate active substance abuse in the workplace, and there is no requirement to give him a chance to seek treatment. Also, under the Paid Family Medical Leave law (PFML), employees can take up to 12 weeks of leave for intensive treatment.

Reasonable suspicion of drug use in the workplace is a complex issue that requires a clear and systematic approach. Employers need to be vigilant and trained to recognize the signs of impairment while balancing the need for a safe work environment with the rights of employees. By implementing clear policies, training supervisors, and acting based on objective facts, employers can address suspected drug use effectively and competently.

Need Help?

If AIM members have questions about reasonable suspicion or any other HR questions, they may contact the AIM HR Helpline at 800-470-6277 or helpline@aimnet.org.

AIM HR Solutions is also offering a reasonable suspicion class on May 14. We can provide this class on-site or virtually at your workplace for a group of managers or bring it to you. Available onsite or virtually, this training helps your managers recognize signs of impairment and respond appropriately. Contact us at hrinfo@AIMHRSolutions.com of 617.488.8321 for more information.