Pitfalls in Employee Handbook Drug and Alcohol Policies

Don’t rush into putting a drug-alcohol abuse policy into your employee handbook. And if you already have a policy on this topic in your handbook, review it to make sure it isn’t exposing you and your business to troubles you haven’t anticipated.

Common Mistakes

Here are some of the mistakes and omissions in drug-alcohol abuse policies:

1) Drug Testing Program

Having a drug testing program in place when it’s not the most cost-effective approach to dealing with the challenge, or when it’s not legally required.

Some employers adopt drug testing programs, ranging from testing all applicants considered for employment to randomly testing current employees, because it seems like the right thing to do. After all, there’s been a “War on Drugs” going on for years. But for most employers, the cost of doing drug testing exceeds any benefits the employer achieves by occasionally screening out drug abusers.

In addition, the laws in some states dealing with the employer’s obligations when doing drug testing of applicants and employees have become so stringent the legal risks of doing drug testing exceed the benefits. So before adopting a drug testing program (or before you continue your present drug testing program) consider these issues:

  • What are the laws in your state on this topic and is it cost-effective for you to comply with them?
  • Based on the type of jobs you offer, does the federal government require you to do drug testing for some positions? For example, some employers in the transportation industry are required to do drug testing. Also,certain employers which contract with the federal government or receive federal funds must distribute workplace policies to certain employees, with the goal of discouraging the illegal use of drugs.
  • What’s the prevalence of illegal drug use in your community? Based on the types of jobs you offer, does your company normally attract applicants from populations with high illegal usage of drugs? If your business is a small service business in a rural community your chances of attracting many drug-abusing applicants may be much lower than if you are a manufacturing or warehouse operation in a large metropolitan area.
  • For employers who do not have a significant risk of hiring people with drug-related problems it is more cost-effective to pass on drug testing. Drug testing, after all, is an expense and always carries with it some degree of legal risk if not done completely within legal requirements and if not done in ways which protect the privacy of the individuals tested. Instead, it will be more cost-effective to train supervisors in how to observe on-the-job behaviors and deal with employees who are suspected of abusing drugs and alcohol. Rather than focus on the possibility an employee might be abusing drugs or alcohol, focus on the attendance or performance issues that are causing an employee to attract undesirable attention.

2) Inadequate Statement in Policy

Having an inadequate statement in your policy which simply refers to “drug use” and alcohol.

If you adopt a policy on this topic, be very specific in telling employees the subject of the policy. Include language such as this: Employees will not possess, be under the influence of, or use any alcohol, intoxicant, or narcotic on the way to work, on the job, or on the Company’s property (including parking lots, adjacent parking lots, or surrounding buildings). In addition, the following activity is prohibited in the workplace on the Company’s property: the unlawful manufacture, distribution, possession, or use of a controlled substance.

2) Not Defining Terms

Not telling employees in the policy exactly what is covered by the terms “drug,” “illegal drug,” “under the influence” and “substance abuse.”

This means putting definitions of these terms in the written policy. Examples follow:

Drug means any substance (other than alcohol) capable of altering the mood, perception, pain level, or judgment of the person consuming it.

Illegal drug means any drug not legally obtained, which is not legally obtainable in this state, which is not lawfully prescribed for you, or which is not being used for a lawfully prescribed purpose.

Under the influence means an individual is affected in any detectable manner by the presence of alcohol or an illegal drug in his or her body.

Substance abuse means the use or consumption of a drug or alcohol in a manner or to an extent it causes a change in the user’s behavior or has a negative impact on the user’s performance and life.

2) Not Getting Attorney Input

Failing to get input from a qualified attorney about the content of the policy.

Drug testing and enforcing drug and alcohol policies create a number of opportunities for missteps by employers and supervisors. Any one of these missteps can open the employer up to legal action by an employee. Before adopting a drug testing program and before adopting a policy on drug and alcohol use, get guidance from an attorney familiar with the subject.

For additional information on employee handbooks see this resource page.