Personnel Perusals- March 2001

One of the major challenges employers in the glass industry face is finding and keeping good people. That challenge is made vastly more difficult when otherwise good employees use drugs or alcohol—on or off the job.
As I see it, you have three choices:
~   Terminate the employee immediately;
~    Ignore the situation as long as it isn’t causing problems;
~    Try to rescue the employee.
The third is the most difficult option, but the right thing to do.
Understanding the Cause
Before you jump into a decision it is important to understand the cause of such self-destructive behavior. Most substance abuse is not the root problem but a symptom of a deeper underlying situation: problems at home, with relationships, self esteem or any number of reasons. Substance abuse is often an escape for the individual. The difficulty is that even if, or when, the root cause of the emotional distress is resolved, the substance abuser is already hooked and the abuse has become a habit. Now the problem is yours, because the employee has brought it to the workplace.
How anyone can ever be certain that someone is dealing with a substance abuse problem is difficult. Signs to look for include emotional ups and downs, unreliability and physical appearance. The best thing to do when you suspect a problem is to address it immediately.

Termination
Your first reaction might be to terminate. That would certainly take care of the abuse problem, but what about the individual? If the employee’s job performance has been otherwise exemplary, is separation really the best course of action? What will the individual’s future job prospects be?

What are the consequences to his or her family? It’s a decision of conscience and one that must be weighed carefully.
Some companies may employ a zero-tolerance policy. Zero tolerance means you won’t accept an employee who comes to work under the influence. (For more on zero tolerance, see sidebar).

Ignoring the Problem
Of course, you could ignore the problem and hope it goes away, but chances are, it won’t. Besides, there’s more to the problem than meets the eye. An employee who is drunk or high on the job puts you, your company and your customers at risk. If the employee is the cause of an accident, is involved in a theft or displays irrational behavior, you are exposed to tremendous liability issues. While you may feel a responsibility to keep the employee on the payroll for one reason or another, your first responsibility is the safety of the customer, other employees and company assets. If you ignore the problem, you become part of it.

Attempting a Rescue
The third alternative is to attempt a rescue. If you decide to keep the employee, then you must accept the responsibility to initiate recovery. If the employee really is an asset to the company, do you not owe him or her that?
I’m not suggesting you attend therapy with the individual, but talking with him or her is a giant first step. In many cases, just having someone to talk to is the key to recovery. You could be that key. If you decide that this is the best course of action, here are some pointers:

First, understand that it is the employee’s decision to recover—not yours. You may be the catalyst that sparks the change, but only he or she can make that change. If he or she fails, you must also understand that you are not responsible for the failure. Talk—then listen. Really listen! Be supportive, not judgmental. Lay out a game plan for recovery such as detox, therapy, rehab or other methods, then encourage and assist the employee in getting the help he or she needs.
Your involvement could range from simple encouragement to financial assistance—the choice is yours. The objective is to help the employee return to normal and be a healthy, responsible person and employee once again.
What if the employee is unwilling to make a commitment to change? Then you have no choice but to rid yourself and your company of a potential liability. Choice number one or three are your only alternatives. Choice number two should not be an option.

by David Barron

Drug testing has come a long way since its controversial early years, when it faced numerous legal challenges. Today it has become a well-accepted tool used by glass companies to keep their workplace safe and drug-free. Only in the most liberal states and under the most egregious circumstances is drug testing, in and of itself, found to be illegal. Despite this recent acceptance of drug testing in general, poorly-drafted policies or the inconsistent use of those policies can still land a business in serious legal trouble.

Zero-Tolerance Policies
Many companies today are enacting zero-tolerance policies, under which any employee testing positive for drug use is subject to immediate termination. Such policies have many benefits, the most important being the assurance of a safe and healthy work environment for all employees. The policy also takes the decisions relating to individual cases out of the hands of supervisors and managers, who may have a motivation to be lenient on select employees.
Zero-tolerance policies can also help companies avoid paying unemployment compensation to workers fired for substance abuse. Under unemployment compensation laws in nearly every state, employee misconduct (such as drug abuse) acts as a disqualification from compensation. However, it is not uncommon for an unemployment agency to request a copy of the company’s drug testing policy before denying benefits. A denial will be much more likely if you are able to provide a clear and concise policy for terminating drug-using employees.

Inconsistent Policies
The pitfalls of zero-tolerance policies arise primarily when they are applied unfairly or inconsistently. Inconsistent application of company drug testing policies will lead to litigation quickly. In a recent Texas case, an African-American employee who was fired under a zero-tolerance policy successfully filed suit when a white employee was given a second chance after a positive drug test. Such a situation reinforces why zero-tolerance policies are so important. Simply having a zero-tolerance policy is inadequate if it is not being followed strictly and without exception. In fact, having a policy that is not enforced consistently may be worse than not having a policy at all.

Second Chances
That leaves the question, though, of how to treat quality employees who simply fall into drug use. Often, these are employees who have given years of devoted service and the last thing you want to do is simply cut them loose. Companies can maintain the opportunity to give good employees a second chance by incorporating a self-identification provision into their company drug policy. Under such a provision, employees would be given a one-time opportunity to tell their employer that they have a drug problem and that they are willing to seek help. This indication must be made before the drug test occurs.
Such a policy should include strict follow-up provisions. Consider giving employees admitting to drug use an immediate leave of absence (unpaid) to complete drug rehabilitation. Before the employee is allowed to return to work, he or she should be required to provide proof of completion of a certified rehabilitation program. The employee should also be subject to random testing thereafter to ensure that he or she is adhering to the rehabilitation program and is avoiding further drug use. Allowing a drug user to return to work without any follow-up could subject the employer to liability if that employee is involved in an accident or injures another person.

Creating a comprehensive drug testing policy and ensuring its consistent application is an important step, and one that can help you avoid the headaches of unnecessary litigation. More importantly, it can help assure the well-being of your company and your employees.

David Barron is an attorney at Alaniz and Schraeder in Houston. He represents employees in employment-related matters. For a free copy of a sample drug testing policy, call 281/531-0927.