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 forthcoming retaliation protections under the Milpitas Minimum Wage Ordinance.
Updated to reflect retaliation protections under the forthcoming Flagstaff minimum wage ordinance.
Updated to reflect retaliation protections in forthcoming amendments to the Division of Occupational and Professional Licensing Act.
Updated to reflect discipline concerns regarding a state law that addresses weapons in the workplace, effective March 21, 2017.
HR guidance on the legal risks of substance abuse.