It’s no surprise to employers that substance abuse in the workplace is problematic for businesses and can lead to increased workplace injuries, loss of productivity, employer liability, and a steady rise in health insurance claims.
But what can you do if you suspect that your employee has a substance abuse problem, but there is no clear evidence of abuse? First, don’t rush to judgement; assess the situation. What you don’t want to do is accuse your employee of having a drug or alcohol problem; even if you have clear cut proof that the employee in fact does have an issue.
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Focus on the employee’s work performance as part of your assessment. If your staff member does have a substance abuse problem, it will almost always reveal itself through reduced work performance, excessive unscheduled time off, greater than normal sick day absences or ongoing conflicts with other employees.
Accuse your employee of abuse, even if there is evidence to support it. Consult with an HR professional or an employment lawyer regarding the language to use when there is clear evidence of substance abuse at work.
Provide your employee with information on the Family Medical Leave Act, (FMLA), if your employee confides to you that they are battling a drug or alcohol abuse problem. Depending on the size of your organization, (over 50 employees for private sector organizations), you are required to make staff aware of their rights under the FMLA and offer them an opportunity to take time off of work to obtain treatment.
Automatically fire an employee who reveals or displays a substance abuse issue. Substance abuse is considered an illness and you don’t want to appear to be retaliating or discriminating against your employee because they’ve revealed to you that they have an abuse problem. It doesn’t mean that you can’t fire an employee with a substance abuse issue. It does mean that you can’t fire them solely because it is confirmed or you suspect that they have a substance abuse issue. There is a subtle difference. There may be extenuating circumstances so if you are faced with this subtlety, consult an expert.
Continue to hold the employee accountable for their work performance. Unless the employee has verifiable medical documentation of an issue and is seeking help, they are still responsible for performing the work that you’ve hired them to do and you are required to allow them to do so for period of time.
If you’ve documented that you have fully supported your employee by making them aware of their rights under the FMLA, and that you’ve given them an opportunity to seek medical assistance as well as given them an opportunity to turn around their performance, and there are still ongoing performance issues, you are in a much better position to consider termination.
Remember that the Americans with Disabilities Act prohibits employers from discriminating against a current or future employee who has successfully completed treatment and is no longer dealing with a substance abuse problem.
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