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 provisions in the Michigan Regulation and Taxation of Marihuana Act, effective December 6, 2018.
Updated to reflect retaliation provisions in the medical marijuana law, effective December 6, 2018.
Updated to reflect retaliation provisions in the Utah Medical Cannabis Act, effective December 3, 2018.
Updated to reflect retaliation protections in the forthcoming Oakland Hotel Minimum Wage and Working Conditions ordinance.
Updated to reflect legal developments regarding the forthcoming Austin paid sick leave law.
Updated to reflect retaliation protections in the forthcoming St. Paul minimum wage ordinance.
Updated to reflect retaliation protections under the state paid sick leave law and to remove the preempted local paid sick leave laws, effective October 29, 2018.
HR guidance on the legal risks of substance abuse.