4 Things to Avoid When you Discover Substance Abuse Issues at Your Workplace
Finding out that one or more employees at your workplace has a substance abuse problem is frustrating, heartbreaking and maddening. But, it’s also a relief. Once you have ascertained that someone is abusing drugs either at work or prior to coming to work, you can take steps to address the issue and the danger that comes with it.

While you should implement drug testing and make sure an employee who is abusing drugs isn’t in a position to hurt anyone with their actions, there are a few key things you should also avoid doing, as they may open you up to legal repercussions.

If you discover one or more of your employees has a drug abuse problem that is affecting their work performance, avoid:
1. Only drug testing specific people
It may be tempting to only drug test the one person you suspect is abusing drugs or maybe just drug testing the department they work in or only a certain group of people. That would save you some money rather than having to drug test a certain percentage of your entire workforce, but you have to avoid targeting any one person or specific group of people.

When you target a single person or group of people, you open your company up to allegations of discrimination and possible legal action, particularly if that group of people has something in common like ethnicity or a shared religion. The Civil Rights Act says you have to treat all your employees equally without singling out any specific racial, ethnic, or gender group for testing or disciplinary action.

Similarly, you can’t have a random drug testing policy and then always pick a specific person or group of people to participate. It has to be completely random each time you do it.

However, there are some occasions when you can drug test a specific person. When a person is completing a Return-to-Duty process after having failed a drug test and gone for counselling, drug testing is usually part of that process. You may also be able to require a drug test if there is sufficient cause to believe a person is abusing drugs, like finding drugs in the person’s desk or smelling cannabis smoke near where the person is. However, you must tread carefully in these situations and consult your state’s drug laws and your legal counsel.
2. Announcing when you will be drug testing
When you discover that someone on your staff is abusing drugs, you will most likely want to start prevention measures like drawing up a drug testing policy and introducing a drug screening program if you don’t already have one in place. One of the key elements to an effective drug testing program is randomness. If people know when drug testing will be happening, it will allow them to stop the abuse during the time of the drug testing.

Since “harder” drugs like cocaine, heroin and other opiates, MDMA and other seriously debilitating drugs tend to only take a couple of days to leave the user’s system, knowing when drug testing will occur will give users of these types of drugs plenty of time to stop for a few days. (Typically cannabis takes anywhere from three days to over a week to leave a person’s system.)

To avoid people tricking the testing program this way, it’s imperative that drug screening be random. When implementing a random drug testing regimen, it’s extremely important to consult your legal counsel and make sure it complies with all federal and state laws that could pertain to drug testing.

The aforementioned Civil Rights Act is one federal law, but you will also need to take into account the Americans with Disabilities Act, which prohibits you from discriminating against recovering drug and alcohol addicts; the Family and Medical Leave Act, which allows employees to take medical leave to deal with addiction (whether their own or a family member’s); and the National Labor Relations Act, which states that any drug testing policy enacted in a company where the workers are unionized must be negotiated together with the union.

As for individual state laws, they vary across all 50 states, which is why it’s so crucial to know the laws in all the states where your business has locations where employees are present. Drug testing, particularly random drug testing, can be a contentious issue. Knowing the federal and state laws that affect drug testing will allow you to develop a drug testing policy that works for you within the boundaries of the law.
3. Immediately firing the person with substance abuse issues
Even if an employee has failed a drug test, you should refrain from firing them right away and, in fact, you might not be able to fire them for that reason anyway.

Certain industries, safety sensitive jobs and contractors for the federal government are obligated to comply with federal drug testing guidelines. These guidelines are covered by the Omnibus Transportation Employee Testing Act, which was passed by the federal government for employees in jobs that are covered by the Department of Transportation and include steps to take when an employee fails a drug test. None of those steps is firing the employee. They involve rehabilitation instead.

Industries and jobs not covered by that particular act are subject to state drug testing laws. As mentioned above, these state laws vary greatly and that includes dismissals due to a drug test failure. In some states you have to give an employee enough time to dispute the failure. In other states you can’t fire an employee for a failed drug test if that person agrees to enter a rehabilitation program.

You may have more leeway to fire an employee if the offence is more egregious, like actually catching them doing drugs on the premises or finding drugs on them. Check with your own drug policy, your state’s laws and your legal counsel to ascertain what you can do in such a scenario. 
4. Being unprepared for it
One in 10 full-time employed adult Americans have a substance abuse issue, according to the Substance Abuse and Mental Health Services Administration (SAMHSA), meaning that finding someone who abuses drugs in your workforce is more like an unfortunate eventuality than a random occurrence.

It’s best to have a policy in place well ahead of time that addresses drug use both on and off premises, drug testing and legalized cannabis. If you plan to implement drug testing, make sure the policy covers how it will be done, what type of testing will be done and how the testing will be administered, how failures will be handled and what constitutes grounds for dismissal. Craft your policy with the goal of increasing workplace safety, not with the goal of catching substance abusers and have your legal counsel look it over to ensure it covers your bases and you’re not leaving yourself open to legal action.

With a drug epidemic currently raging in the country, it’s imperative to be prepared for the worst case scenario of finding that one of your employees has succumbed to it. With the right policy and framework, you can protect your business and hopefully get employees who abuse drugs the help they need.