Working World

I suspect that one of my employees is coming to work high on drugs. Can I confront him and require him to take a drug test, or would that be a violation of his privacy? Do I have to worry about the Americans with Disabilities Act?

If you have reason to suspect that an employee is using drugs on the job, you may certainly confront him. In fact, if you have “reasonable suspicion,” you may legally insist that he or she take a drug test.

Reasonable suspicion is based on objective facts — alcohol on the breath, bloodshot eyes, slurred speech, inability to respond coherently to questions. Before jumping to any conclusions from a drug test, however, you should make sure that a positive result cannot be explained by use of a prescription drug prescribed to the employee.

The employer may also require a drug test when the employee in question was in a work-related accident and the employer has reasonable suspicion that the employee was under the influence. Also, courts have upheld the employer’s right to require a drug test in the transportation industry after any serious accident.

Terminating an employee for illegally using drugs at work is not a violation of the American with Disabilities Act (ADA) and its California counterpart. Not surprisingly, illegal drug and alcohol abuse are not disabilities protected by the ADA. However, the ADA does protect employees who have been successfully rehabilitated or who are actively involved in a drug treatment program. In fact, California Labor Code 1025 requires employers with 25 or more employees to reasonably accommodate any employee who wishes to enter into “rehab.”

Amy Semmel is an attorney with the firm of Donfeld, Kelley & Rollman. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.