Baked: Dealing with the Growing Problem of Workplace Drug Use

By Phil LaDuke

Continuing my series of blog coverage of the EH&S Today’s Leadership Conference I wanted to point out another great session that I attended. In High Society: Substance Abuse Challenges in Today’s Workplace. This is a keen area of interest to me, since many of my clients are high-consequence industries, that is to say, one screw up and kill many.

Regular readers of this blog will recognize the importance I place on having clear-headed employees, particularly in the context of “performance inhibitors” (those things that increase a person’s tendency to commit errors, make poor choices, and engage in risky behavior). One would think that achieving a “drug-free” workplace would be far easier than achieving an-injury free workplace, but after attending this session I’m not so sure.

The session was a panel discussion with Fisher & Phillips LLC, partner Danielle Urban moderating. The panel initially was to be Doreen Shaw and Marilynn Zolanek both of the MYR Group Inc. and Shannon Dennis from Industrial Safety Solutions, Inc.

The session kicked off by asking what would seem to be a fairly obvious question, “Why should you care (about drug addled employees)” Ms. Urban dutifully read from a slide of fairly obvious answers, mostly the usual suspects and what you expect as responses that according to the National Institute on Drug Abuses “Employees who abuse drugs and/or alcohol are more likely to be:

• Absent

• Late to work

• Unproductive at work

• They also change jobs more frequently and file more workers’ compensation claims”

(Nice heads up findings there NIODA, seriously? Nothing on worker safety?)

Despite the obviousness of the slide, the accompanying commentary from the moderator and panelists was anything but obvious or trite. As the speakers pointed out, 23 states and Washington DC have legalized the medical use of marijuana and Colorado has legalized it outright. The use of marijuana has become so widespread that many companies have stopped drug-screening for fear that none of their employees would pass or that they would not be able to attract viable candidates were they to exclude pot heads.

It’s As Bad as It Seems

The speakers shared some pretty alarming statistics, particularly if you are purchasing goods or services from Cheech and Chong Construction or are walking in front of the Pineapple Express:

• The National Council on Alcoholism and Drug Dependence, Inc. estimates that prescription drug abuse costs employers $81 billion annually. (National Council on Alcoholism and Drug Dependence, Inc.)
• 70% of the estimated 14.8 million Americans who use illegal drugs are employed. (National Council on Alcoholism and Drug Dependence, Inc.)
• Marijuana is the third most popular recreational drug in the U.S. (presumably behind alcohol and nicotine[1] (NORML.Org.)
• The nation’s fastest growing drug problem is the abuse of prescription drugs. (White House Office of National Drug Control Policy)

The abuse of illegal drugs in the workplace is fairly straightforward: most organizations have provisions in their codes of conduct that prohibit the use of illegal drugs while in the employ of the company whether or not the drug use takes place. Typically, such behavior results in the dismissal of the employee, but may also allow for therapeutic treatment for first offenders. Managing the abuse of legal drugs is somewhat dicier; approach the problem inappropriately and you may find yourself violating HIPPA or the American’s With Disabilities Act. In some states, (like Michigan and Arizona for example) employers are forbidden from disciplining employees for the use of prescription drugs under certain circumstances.

So what can employers do? Well for starters, I should point out that Marijuana is still illegal under U.S. Federal law so any claim a worker has for protection under state law probably won’t get very far. But the panelists did have some great suggestions for employers struggling with increasing drug use by their workers:

• Try to Avoid Hiring Active Drug Users. While it is possible that people may develop a drug problem AFTER you have hired them, you stand a better chance of hiring someone who already has a drug problem (remember 70% of drug abusers are employed). Sure you can put applicants through a drug screen, but that won’t catch them all. Drug abusers may be easier to spot than you might believe, as the speaker’s pointed out, according to the National Council on Alcoholism and Drug Dependence, workers who report having three or more jobs in the prior five years are twice as likely to be users of illegal drugs (compared to workers with longer tenures.)
• Revisit Your Drug Policy. The speakers had great information on how to craft a good drug policy. According to the panel a good drug policy should:
  • Clearly state the purpose of the policy. There is nothing wrong with spelling out the reasons why your organization has a policy against drug use, including the fact that impaired employees put the safety of others at risk.
  • Identify who is subject to policy provisions. The nature of some work may require a different standard of testing and screening. Make it clear who the policy covers and any exceptions that will be made to accommodate special circumstances.
  • State expectations and prohibitions. Specifically identify the types of substances that are prohibited. If your organization is going to prohibit the use of medical marijuana, for example, spell that out to workers; many may erroneously believe that a prescription entitles them to use a prohibited substance.
  • Explain how you will enforce the policy and the consequences for violations. Your disciplinary process must be clear and consistently applied to all employees. Explain your company’s disciplinary and Investigative processes.
  • Identify when and why testing will occur. Do yourself a favor and let your workers know when and why you will test them for drug use. If you are planning random, post incident, or reasonable suspicion testing workers should know this in advance to avoid any claim that they are being unfairly persecuted,
  • Testing procedures. Clearly detail how the drug tests will be conducted.
• Focus On Fitness for Duty. Even states that prohibit employers from disciplining or discriminating against workers for using prescription drugs make exceptions for jobs or situations where the use of legal drugs would jeopardize workplace safety. The panel suggested that in some cases where a worker admitted using a prescription drug on the job it is wise to require the worker to get a letter from the physician that states that the doctor understands the job requirements and is confident that the worker can do the job while taking the medication. Ideally, this communication should identify any restrictions on the worker while under the influence of the drug.
• Train Supervisors and Managers to Spot Drug Abuse. Nipping drug abuse in the bud is an important tactic in the battle against a drug-abusing workforce and to do this you should train your supervisors to spot drug abuse. Workers who abuse drugs may:
  • become more moody or have mood swings.
  • seem more tired, and have difficulty concentrating, or demonstrate uncharacteristic lapses in judgment.
  • neglect their usual responsibilities.
  • have an increase in performance or disciplinary issues
  • be more anxious or worried than normal.
  • unusual smelling clothes or body odor.
  • shaking, poor co-ordination.
  • exhibit changes in behavior and even engage in bizarre or violent behavior.
• Implement Reasonable Suspicion Drug Testing. Having a clear definition of what constitutes “reasonable” suspicion is key to having a viable for-cause drug testing policy.

The message I took away from the session was that while drug use and abuse is increasing (particularly prescription drugs) companies still have many tools for combatting impaired workers jeopardizing safety. Perhaps the greatest tool is the same for drug abuse as it is for most policy infractions: focus on the behavior and be consistent in enforcement

[1] The drugs in order to popularity according to Listverse.com are 1) Cannabis 2) Heroin 3) Cocaine 4) Ecstasy 5) amphetamines 6) Barbiturates 7) LSD 8)Opium 9) psychedelic mushrooms 10) Solvents

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