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 statewide smoking ban, effective October 1, 2018.
Updated to include retaliation protections in the Disclosing Sexual Harassment in the Workplace Act of 2018, effective October 1, 2018.
Updated to reflect retaliation protections in the forthcoming state paid sick leave law.
Updated to include retaliation protections under the forthcoming San Antonio paid sick leave law.
Updated to include information on a medical marijuana case under state law.
Updated to reflect retaliation protections in the forthcoming Duluth paid sick leave law.
Updated to reflect the state medical marijuana law, effective July 26, 2018.
Updated to include amendments to the state Public Health and Workplace Safety Act, effective July 1, 2018.
HR guidance on the legal risks of substance abuse.