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 reflect retaliation protections under the forthcoming state paid sick leave law.
Updated to reflect retaliation protections in the forthcoming Chicago paid sick leave law, the Cook County Earned Sick Leave Ordinance, the state Employee Sick Leave Act and the state Right to Privacy in the Workplace Act Amendments.
On Election Day, states went high: voters in California, Massachusetts and Nevada voted to legalize recreational marijuana. Maine's results are still listed as "too close to call," but those voting "yes" are in the lead.
Updated to reflect anti-retaliation requirements under Montgomery County's Earned Sick and Safe Leave law, effective October 1, 2016.
Updated to reflect discipline concerns regarding the state medical marijuana law, effective September 6, 2016.
Updated to include detailed information on the forthcoming state Act to Establish Pay Equity, which strengthens existing equal pay laws.
Updated to include retaliation protections under the state's pregnancy accommodations law, effective August 10, 2016.
Updated to reflect discipline concerns under the Workplace Privacy Act, effective July 20, 2016.
Updated to include information on a state court ruling allowing for damages in a retaliation claim under the Minnesota Fair Labor Standards Act, and forthcoming Minneapolis and St. Paul sick and safe time protections.
HR guidance on the legal risks of substance abuse.