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 discipline concerns regarding forthcoming state medical marijuana law.
Updated to include retaliation protections under the state's forthcoming pregnancy accommodations law.
Updated to reflect discipline concerns regarding an employee's right to take unpaid time off to respond to a subpoena, effective June 6, 2016.
Updated to include forthcoming requirements regarding post-termination physician covenants not to compete.
Updated to include amendments to employee retaliation protections, effective May 10, 2016.
Updated to include forthcoming expansion of state smoking prohibitions in the workplace, including e-cigarette use.
Updated to reflect forthcoming amendments to the Protecting Guardsmen's Employment Act.
Updated to reflect forthcoming discipline concerns under the Workplace Privacy Act.
Updated to reflect retaliation protections under Austin's ban the box ordinance, effective April 4, 2016.
HR guidance on the legal risks of substance abuse.