Overview: Substance abuse in the workplace may lead to an increase in avoidable on-the-job accidents, decreased productivity and potential negligent retention/supervision court claims. However, employers need to understand their legal rights and responsibilities under federal, state and local law with respect to employee drug testing and discipline.
Employers must ensure that their employee discipline policies and procedures allow for flexibility in addressing substance abuse problems in the workplace. Although an employer may choose to terminate an employee who has been found to possess illegal drugs on business premises, the option to provide the employee with a firm choice or last chance agreement in lieu of termination (requiring that the employee seek rehabilitative services) may prove a more appropriate response.
Trends: Case and criminal law continues to evolve in states with marijuana protections. Although most laws do not protect employees who are under the influence of marijuana while on-duty, employers continue to grapple with the optimal method to address marijuana use, whether on- or off-duty.
Author: Marta Moakley, JD, Legal Editor
Updated to include information on an appellate court case regarding the Conscientious Employee Protection Act (CEPA).
Updated to include forthcoming amendments to the Volunteer Emergency Worker Job Protection Act.
Updated to include information on a medical marijuana case under state law.
Updated to reflect retaliation protections under the forthcoming Oregon scheduling law.
Updated to include retaliation protections in the forthcoming state Pregnant Workers Fairness Act.
Updated to include amendments regarding the smoking of marijuana in the workplace, to the Arkansas Medical Marijuana Amendment Act of 2016, and to the Arkansas Whistleblower Act, effective July 31, 2017.
Updated to reflect retaliation protections in the forthcoming Minneapolis minimum wage ordinance.
HR guidance on the legal risks of substance abuse.