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 in the forthcoming law regarding pregnancy accommodations.
Updated to reflect retaliation protections in the Chicago Fair Workweek Ordinance, effective July 1, 2020.
Updated to reflect amendment extending protections to interns, effective July 1, 2020.
Updated to reflect law regarding microchip implantation, effective July 1, 2020.
Updated to include retaliation protections regarding worker misclassification, employees' discussion of wages, nonpayment of wages and noncompete agreements for low-wage workers; to include whistleblower protections; and to reflect the Virginia Values Act, all effective July 1, 2020.
Updated to include retaliation protections under the Santa Rosa minimum wage ordinance and Oakland Hotel Minimum Wage and Working Conditions ordinance.
Updated to reflect law amending protections for voters, effective May 12, 2020.
Updated to reflect legal developments regarding the Dallas paid sick leave law.
Updated to reflect retaliation protections in the Philadelphia Fair Workweek Ordinance, effective April 1, 2020.
Updated to reflect state retaliation protections, effective April 1, 2020.
HR guidance on the legal risks of substance abuse.