Episode 242 - Navigating Drug Testing, Substance Use in Today’s Workplace

Welcome to The Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello, listeners. We always like to note that the phrase human resources, of course, highlights the nature of workforce management. That is, that our workforce is in fact human and does sometimes come with addressing human behavior. Unfortunately, this can include human behaviors that are more problematic for the workplace, such as drug and alcohol abuse. Combining legal compliance with the sensitive situations that often arise from substance abuse, managing the issue can be complex and lead to some misconceptions about how we approach and mitigate against drug and alcohol use in the workplace. So to help provide some thoughtful guidance on working through drug and alcohol use issues at the workplace, We welcome back CalChamber's General Counsel for Labor and Employment, Bianca Saad. Welcome back, Bianca.

Oh, thank you, Matt. Always happy to join.

All right, so let's set the stage, Bianca. You know, due to some recent legal changes, such as the legalization of recreational cannabis use or even changes to the Fair Employment and Housing Act that created a protected class for offsite, off-duty cannabis use, employers have become more unclear on what kind of workplace policies we can have related to drug and alcohol use. So can you provide some tips in this regard for establishing a drug and alcohol workplace policy?

Yes, of course. So first, you can absolutely have a drug and alcohol-free workplace policy regardless of whether substances are legal or not. Now, these policies should reflect the purpose of workplace health and safety, and in this regard, the policies would reflect an employer zero tolerance for workplace intoxication. So policy should also reflect how the policy will be enforced, such as through testing based on reasonable suspicion and any disciplinary consequences for violating the policies up to and including termination of employment.

All right. So it's good, we're clear, we can still maintain these alcohol and drug-free workplace policies. But one of the first issues that often comes up is if the employer itself wants to provide the alcohol, say, at like a holiday party or a celebratory event. Event. How do we reconcile that type of behavior from the employer with the policy that they have established where you've mentioned it's a zero tolerance alcohol use policy?

Ah, yes. So this is a common occurrence, but not one to take lightly, and it should definitely only occur after some thought has been put into how the employer will supply alcohol at the event. So while an employer can choose to do this, there are some best practices that should come along with supplying alcohol at a company-sponsored event. So first, we should make sure our employees know this is a unique exception to our zero-tolerance nature of the policy, and we also want to make sure employees understand that they are still expected to drink responsibly, essentially, and avoid violating other policies such as our harassment prevention or code of conduct policies. In other words, the drinking of alcohol isn't going to be an excuse for policy violations, right? So we want to make sure employees are clear about the expectations. You can also limit the amount of alcoholic beverages that are provided to each employee. So for example, by issuing only a certain number of drink tickets or having some other control mechanism in place. Also, it helps to put a limit on how long the alcohol is served during the event. And offering some alternative transportation, again, depending on the location and the time of day, all of these things, you know, so maybe providing for rideshare services for the employees or offering, reimbursing the employees for rideshare, because one thing to be aware of, of course, is that an employer could be liable for injuries that are caused to third parties due to their consumption of alcohol. And then lastly, you know, really understanding leadership as a whole should really be sort of monitoring the consumption throughout the event, assessing any developing risks or issues that are arising during, you know, maybe something's going on, maybe the group's getting rowdier more quickly than we expected to where we are shutting things down sooner, things of that nature.

I think those are all great tips there about kind of how we handle our own parties themselves. Now, you also mentioned in the policy itself testing, and more frequently we hear questions and comments from employers about drug testing, and that is really, you know, the topic that we receive a lot of questions about. So let's focus in on drug testing, and can you walk us through how drug testing works in the state of California?

Yes. First of all, drug testing isn't just as simple as an employer just randomly deciding that they simply want to drug test an employee, you know, whenever they want or at their convenience. So these are considered medical inquiries. So we need to be aware of how California's privacy protections impact our ability to drug test. Now, what an employer can do, though, is require a pre-employment drug screening as part of a contingent offer of employment. [Speaker:JULIE] So if we are doing this, we still need to be consistent and make sure we're uniformly applying the requirements. So whether that's for every single potential new hire across the board of the organization, or if we're only deciding to impose the drug testing on certain types or classifications of employees, you know, only subjecting them to the screening. So for example, maybe certain safety-sensitive positions in that nature. But once the individual is employed, this is the important part, the privacy rules do change the situation a little bit. So that is going to create some barriers to this type of testing. So one thing that we can do for our current employees, though, and still remaining compliant with privacy rules is if we conduct what is referred to as a reasonable suspicion drug test. Now, this is where we have observed some objective factors in the workplace, such as an employee has the smell of alcohol, the appearance of being intoxicated, maybe they're slurring their speech, any sort of objective factor that now creates this reasonable suspicion that the employee is indeed currently intoxicated. Now, contrast that with an area where employers would need to consult with legal counsel is things like post-accident testing or random drug testing. So, in a lot of cases, the privacy protections will prohibit these types of testing unless there is an additional reasonable suspicion of intoxication. So in that case of an accident, or if we're talking about random drug testing, you know, is that really something that's supported by the nature of the work or the industry? So you'd want to consult with legal counsel before engaging in either of those.

So then really what I'm hearing around this is it's important to have that written alcohol and drug-free workplace policy that sets the stage, no intoxication at the workplace. But there's a lot of protocols I think we need to prepare for in the organization in terms of how we're going to do the testing, when we're going to do the testing, to make sure that we're kind of efficient about it. So in addition to what you just mentioned there, are there any other kind of specific testing considerations that employers should be aware of as we continue to develop the actual protocols for sending employees off for testing?

Yes, and I think you just touched on it, and part of that is really just having those protocols in place, right, before something happens is really going to be key. So But practically speaking, you know, employers are often going to need to respond to the potential need for testing in real time, under, at a fast pace, and so we want to have those well-planned protocols in place before something happens so we can perform the tests that we need to successfully. Now, one other consideration is what you referred to earlier about the Fair Employment and Housing Act Amendment. Where cannabis that is used off-duty and away from the workplace. So we have protections around that. So as part of that amendment, how employers are going to test for cannabis has changed so that employers are only permitted to use tests that are going to screen for what is referred to as the psychoactive cannabis metabolites. The traditional testing that was in place years before this amendment went into effect does not comply with this. And so employers do need to make sure that whatever screeners they're using for testing, they are using the appropriate tests. Now, there are limited exceptions for employees in the building and construction trades and those subject to other federal laws that may require specific type of tests. But again, employers should consult legal counsel if they think they may qualify for an exception under one of those circumstances.

All right. So there is really a lot to think about testing, as you say, at the outset. This isn't so simple as, "I'm an employer and I just wanna drug test this employee." And so I really love the idea that we're just ready to go with the appropriate protocols to determine if the testing is gonna comply with these laws that you've talked about and how we would do that in real time. 'Cause you have to just really imagine when you're approaching a drug, issue in the workplace, it's happening like right in front of you and every second, every minute counts for these health and safety reasons. Now, one question that pops up is, you know, are there any kind of protections for employees related to substance abuse, such as if they come to you and they say, I'm having a substance abuse problem and I would like time off to go to rehab?

Yes. So there are potential leave or accommodation requirements, but none of these protections are applicable for current illegal substance to you. So, for example, if an employee comes in, they're intoxicated, you can enforce your alcohol and drug-free workplace policy, which may include discipline up to and including termination of employment. Now, conversely, if an employee comes to us and they are wanting to take time off to voluntarily enter into a rehabilitation program, you may need to accommodate that request. California has a drug and alcohol rehabilitation leave accommodation law that covers employers with 25 or more employees. So this law requires employers to provide the accommodation unless it causes an undue hardship. Now, undue hardship, as we know, is always a high threshold to meet for employers. And so if you're considering denying the request for undue hardship, then you do want to consult legal counsel. Now, even for employers who are not covered by that law because they have fewer than 25 employees, the Fair Employment and Housing Act or the Americans with Disabilities Act may still come into play if the substance abuse is related to an underlying physical or mental disability and the time off would constitute a reasonable accommodation under either of those laws.

All right. I think we've covered a wide berth of information for employers to consider around drafting their policies and implementing those policies. Do you have any other kind of practical tips for employers in this area?

Yes. So we need to remember that active intoxication at the workplace can create serious health and safety issues for those employees and their coworkers. So this behavior is something that employers really do need to take seriously and be able to address urgently. But of course, as we know, HR and leadership can't be everywhere at once all the time. So what that means is that training our supervisors and our leads on how the policy works and what to look for is going to be vital so that to help us to quickly address the issues as they arise as part of the employer's overall safety program. The training should include, you know, things like what objective factors could constitute reasonable suspicion of intoxication, how to document the process, who should the supervisor or lead inform if they are observing these factors, and what kind of interim actions should the supervisor take, again, to reduce the health and safety risk in the meantime. So this is one of those compliance issues that really does take a team effort. And first of all, information is going to be the first key to empower all of supervisors and then making sure that our supervisors, again, they know what to do and they're taking action where appropriate.

Excellent. Well, Bianca, I know we continue to see from employers regular workplace issues around drug and alcohol use among their employees. So really, thank you for taking some time to discuss with me how the employer should prepare to address this issue. If it unfortunately arises in their workplace.

My pleasure, Matt. Thanks for having me.

And thank you, listeners, for joining this discussion on the workplace. Please share and subscribe to CalChamber's podcast by visiting calchamber.com.