With so many employers focused on how the legalization of medical and/or recreational marijuana might affect them, it’s understandable that companies may be less adept at dealing with worker drug and alcohol use.
But the truth is, mishandling these situations can get you in as much legal trouble as not complying with your state’s marijuana laws.
Here are some common situations involving employee drug and alcohol use you may encounter, and guidance on how to handle them:
1. An employee wants an ADA accommodation or FMLA leave for a drug or alcohol addiction.
A series of DOL opinion letters addressed this issue, and it was determined that under certain circumstances, addiction can be considered a serious health condition under the FMLA.
Addicts are eligible for FMLA leave if they’re currently seeking treatment from a healthcare provider.
It’s important to note that FMLA leave can’t be used due to absences caused by substance use. So if an employee relapses and is absent because of that, they’re no longer FMLA-protected.
As for the ADA, an addict currently in recovery might qualify for an accommodation. For example, if an employee requests that their schedule gets adjusted so they can attend AA meetings, an employer may have to grant that request.
2. An employer wants to ask an employee questions about their drug, alcohol or medication use.
When you learn an employee is using any of the above substances, it’s natural to want to know more information as it may affect their performance.
However, there are only certain circumstances when it’s acceptable to ask.
In Lansdale v. UPS Supply Chain Solutions, a jury found an employer didn’t violate the ADA by asking about an employee’s drinking habits and alcohol use.
During an audit, some discrepancies were found between an employee’s expense report and the charges on their corporate card. When questioned, the employee admitted he purchased alcohol on the company card so his wife wouldn’t find out.
After learning this, the employer asked follow-up questions about the employee’s drinking — he later sued, claiming this violated his ADA rights.
A jury sided with the employer. Since it was conducting a credit card misuse investigation, the ADA hadn’t been violated.
However, in other cases, questions like these may violate the ADA if the employee is protected. The Act states an employer “shall not make inquiries as to the nature or severity of the disability unless it is consistent with business needs.”
The same goes for questions about prescription medications. The EEOC says employee medication use would rarely impact someone’s ability to do their job. However, in limited circumstances employers may ask.
For example, medications might impact a police officer or pilot’s ability to safely perform their jobs, so an employer may inquire about prescriptions and possible side effects in that case.
3. An employer wants to screen job candidates for marijuana, even though it’s legal in a good portion of the country now.
There are a few places that have outlawed pre-employment marijuana screenings: New York City and the state of Nevada. But everywhere else, it’s up to the employer whether or not to conduct these screenings.
Many employment lawyers advise against this unless jobs are safety-sensitive, such as a federal DOT employee or a doctor. Unnecessarily screening candidates for marijuana can severely limit your candidate pool.