To Test or Not to Test – Reasonable Suspicion in the Workplace

Within a workplace setting what does an employer do when there is a legitimate reason to believe that the employee has been abusing alcohol or taking other drugs.  The law regarding employee privacy is evolving and many testing programs should be considered open to a legal challenge.  What is the right balance of the privacy rights of the employee against the needs of the company?

Generally, in the United States, work-based drug and alcohol testing is presumed lawful unless there is a specific restriction based upon state or federal law. Currently, there are no comprehensive federal laws relating to work place drug and alcohol testing. So, the issue of an employer’s right to conduct testing has largely been left to the states.   Some states sharply limit testing and others broadly allow it.  Given the patchwork of state laws most employers have adopted a “reasonable suspicion” standard for drug and alcohol testing.

Reasonable Suspicion – Based on Facts

Illicit drug or alcohol testing based upon reasonable suspicion must be grounded upon asupervisor’s contemporaneous observation of an employee’s behavior that suggest a problem with substance use. 

The belief must be based on factual observations of the employee, not on hunch or gut feeling. These factualobservations based upon a set of behaviors must suggest there is reason to conduct an alcohol or other drug test.

The reasonable suspicion standard relies upon the concept of ruling out or eliminating a possible cause for the observed employee conduct. It is used to rule out illegal drugs or alcohol as the source of a particular employee’s behavior rather than as an effort to catch an employee’s use.  Thus, asupervisor does not have to denote probable illegal drug or alcohol use in order to test, but rather as a need to eliminate possible drug or alcohol misuse as the source of the employee’s behavior.

Using an Observation Checklist

To eliminate claims of bias or retaliation, the supervisor witnessing the behavior should use an Observation Checklist to document specific behaviors that suggest that the person is under the influence of illegal drugs or alcohol. An Observation Checklist is a list of questions an individual fills out in response to what they are observing in an employee’s actions and conduct.

Observation Checklists allow supervisors to record an employee’s behavior in relation to their work performance. They are written in a yes/no format that can be used to assist in observing an employee’s performance relative to specific criteria. These tools can also include spaces for brief comments which provide additional information not captured in the checklist.

A reasonable suspicion checklist is not a diagnostic tool that provides evidence of a substance use disorder. It is one way of documenting conduct by an employee that appears to be prohibited by the company’s substance use policies.  If the information contained in Checklist justifies further action, the manager or supervisor should confront the employee with the documentation. Before using the Checklist, it should be reviewed by the Human Resource Department.

Protecting Your Employees and the Public

Any comprehensive workplace alcohol and other drug testing program should be based upon the reasonable suspicion standard. The primary purpose should be to deter employees rather than to identify and punish those who do use illegal drugs or misuse alcohol. Any employee who tests positive must be either forced into a plan drawn up by the company’s Employee Assistance Plan or removed, as the overall goal of should be  workplace safety and the protection of the public. 

Criteria to Consider

The Supervisor’s Manual Guidelines for Reasonable Suspicion Drug and Alcohol Testing For Supervisors of DOT-Covered Employeeslists specific criteria that are useful in meeting the reasonable suspicion standard. Reasonable suspicion testing is based on the following criteria:

• “Decision[s] to test must be based on supervisor’s observations
• Observations must be specific, contemporaneous, and articulable
• Observations must be of employee appearance, behavior, conduct
• Supervisor must have training on signs and symptoms of drug and alcohol abuse
• Supervisor who makes observations cannot conduct alcohol test or collect urine specimen for drug test
• For reasonable suspicion alcohol testing, observations must be made just before, during, or just after performing safety-sensitive duties
• Testing must be conducted promptly after the determination to test is made
• If alcohol test is not conducted within 2 hours, reasons must be documented; if not conducted within 8 hours, test must be discontinued
• Any employee who may be under the influence of or impaired by alcohol or drugs must be removed from duty
• Written documentation of observations is required within 24 hours
• Illegal drug use is prohibited at all times
• Urine drug test does not establish if the person is under the influence of a drug.”

Reasonable suspicion testing feels like a bit of a land mine but, when done properly, it protects not only the company but also the employee and the public.  Make sure written policies and procedures on this subject are in place before you need them.