Reasonable Suspicion: How to Document It and When It Applies

Documenting reasonable suspicion that an employee may be under the influence of drugs or alcohol at work is one of the most sensitive yet necessary parts of an HR professional’s job.

If you suspect an employee might be under the influence of drugs or alcohol at work, you have a duty to help maintain workplace safety and productivity, which often includes arranging to administer a test for drugs or alcohol. Handle such situations with care while observing legal requirements and continuing to foster a supportive work environment.

These steps were written with the assumption that your organization has a clearly written drug and alcohol policy that includes testing for reasonable suspicion. For those that don’t yet have such a document, here’s a sample Drug and Alcohol Policy.

A general policy statement is not enough to permit testing. If your company’s policy does not specifically reference the possibility of testing for reasonable suspicion, you may want to consult the organization’s legal counsel to determine if this is a type of policy you should implement.

This guide provides a framework to document reasonable suspicion effectively, balancing professionalism with empathy.

Step 1: Receive Complaints

Reasonable suspicion refers to a standard used to determine whether there are specific, objective, and articulable facts that suggest an individual may be under the influence of drugs or alcohol while on the job. This is not based on a hunch or personal bias but, rather, depends on observable evidence that can include physical signs of impairment, behavioral changes, and reports from credible witnesses.

Concerns that an employee is under the influence often come from co-workers—or even clients or vendors—before a supervisor or manager notices. Document the complaints or concerns of co-workers who bring this information forward. Ask what the employee observed, when the employee observed it, and whether others witnessed or commented on the situation. Determine whether there is a pattern of behavior.

Store all documentation securely, ensuring that only authorized personnel have access. This maintains the employee’s privacy and dignity.

Step 2: Observe the Employee

Once someone raises a complaint, an available manager or member of HR should go to the employee’s work area for firsthand observation. The observer usually needs to talk directly with the employee in question to notice any smell of alcohol, eye dilation, slurred speech, or other indicators of being under the influence. The person who performed the initial observation should seek a second member of management or HR to confirm initial suspicions. The second observer should perform their own firsthand observation of the employee.

As marijuana use rises and more states legalize the recreational use of cannabis, employers still need to make sure people know they can’t be impaired at work. Even if marijuana testing isn’t permitted in your state in certain situations, you should ensure that supervisors and managers have been trained to recognize impaired behaviors. That way, they can address issues before accidents happen.

Step 3: Remove the Employee from Safety-Sensitive Areas

If the employee is working around machinery or heavy equipment, is in any other type of safety-sensitive job, or is acting out in a way that appears to be a safety concern for themselves or others, remove the employee from the work area and ask them to wait in a conference room or an office.

Many states that provide employment protections for cannabis users have exceptions for workers in safety-sensitive roles. Some employees, including drivers who are subject to the U.S. Department of Transportation’s rules, must regularly pass drug tests, regardless of state and local cannabis laws.

Step 4: Document Observations

When an employee is suspected of being under the influence, firsthand observation should be made immediately by more than one supervisor or manager.

All observers should clearly document their observations, including any abnormal behaviors. Observers should include the date and time and be as specific as possible without attempting to diagnose the situation. For example, an observation may include:

• Odors (smell of alcohol, body odor, or urine).

• Movements (unsteady, fidgety, or dizzy).

• Eyes (dilated, constricted, or watery eyes; involuntary eye movements).

• Face (flushed, sweating, or a confused or blank look).

• Speech (slurred, slow, distracted mid-thought, or unable to verbalize thoughts).

• Emotions (argumentative, agitated, irritable, or drowsy).

• Actions (yawning or twitching).

• Inactions (sleeping, unconscious, or unresponsive to questions).

Step 5: Assess the Situation

If both observers witnessed and documented behaviors that create a suspicion, managers or HR should meet with the employee. If there is disagreement, bring in a third party to also observe and help in making a determination. 

Multiple perspectives strengthen the validity of the documentation. Focus on observable facts rather than personal opinions. Avoid making assumptions or judgments about the employee’s intentions or state. Concrete language, such as pointing out visible signs of intoxication, sudden changes in behavior, changes in physical appearance, and erratic performance, helps avoid misinterpretation. See examples below for different ways to assess reasonable suspicion.

Step 6: Meet with the Employee

When reasonable-suspicion testing is warranted, clearly explain what has been observed and documented. Let the employee in question know that, in order to rule out the possibility that they are in violation of the company’s drug and alcohol policy, the organization will send them for a drug or alcohol test. Explaining it in this manner shows the employee that the employer has not jumped to any conclusions but is simply following procedures. It also assures the employee that, if they are not under the influence of drugs or alcohol at work, the test will prove this.

If the employer has not obtained a drug testing consent previously, have a consent form available at this meeting for the employee’s signature. Document the meeting details, including the date, time, attendees, and key discussion points. Note the employee’s responses. See examples 2 and 3 below for case studies of how to handle these conversations.

Step 7: Prepare Transportation

Employers should not allow employees suspected of being under the influence behind the wheel of a car; therefore, ensure that the employee does not have to drive to the testing center or home afterward. It is a good idea to work out the transportation arrangement in advance (at the company’s expense) so that it is available when needed. Another option, if feasible, would be to have a manager escort the employee to the testing center and drive the employee home afterward.

Step 8: Wait for Test Results

The employee needs to know what to do and expect the following day. Company policy should address this situation, but if not, be sure to set a consistent practice. In most cases, the employer does not want the employee to return to work until the test results are available.

The employer cannot assume the employee is impaired until the test results confirm it. Employers are not obligated to pay a nonexempt employee for any time or days they must spend off work waiting for test results. Exempt employees may need to use sick leave or paid time off.

Step 9: Respond to the Employee’s Refusal to Take the Test

If the employee refuses to be tested, refer to your company’s drug and alcohol policy. A policy may state that this refusal will be treated as a positive drug test result or that it will result in immediate termination of employment. If the employee attempts to drive home, the employer should never attempt to physically restrain the employee. The organization should note the employee’s type of car and license plate and contact the authorities to report concern that the employee is driving under the influence. See Example 2 below for an outline of how you might handle a refusal. 

Step 10: Respond to Negative Test Results

If the drug or alcohol test results are negative, contact the employee and return them to their job and work shift as soon as possible. Many employers pay the employee for all work shifts and hours they missed while waiting for the negative test results (even if paying the employee is not required). 

Step 11: Respond to Positive Test Results

Again, refer to company policies and precedence. If the organization has an employee assistance program (EAP), it is a good idea to provide contact information for this service regardless of whether the individual’s employment is continued.

Respond consistently when employees don’t pass a drug screen. 

Depending on company policy, the employer may offer a last-chance agreement allowing the employee to seek counseling, treatment, or both and return to work with the understanding that they will be terminated if they’re found under the influence at work again. An employer does have the option to terminate immediately for positive test results if this is the employer’s common practice, policy, or precedent. Organizations may wish to seek legal counsel on how to proceed.

Examples

Example 1: No Reasonable Suspicion

The supervisor of a two-person department receives an email from employee Mike stating that he thinks Dave, the other employee in the department, is coming to work drunk. The email states, “On Monday, Dave smelled like a brewery.” It is now Thursday.

The supervisor talks with Mike to get more information, but there are no other witnesses because no other employees work in the department (Step 1). The supervisor thanks Mike for coming forward with his concerns and asks Mike to let him know immediately if the situation happens again (and to contact HR or the department head if the supervisor is not in the office).

The supervisor meets with Dave but observes no signs of Dave being under the influence at work (Step 2). The supervisor talks with HR and the department head, and they agree that they cannot move forward with any testing based on one employee’s complaint about a concern a few days old. The supervisor is asked to document the situation and provide it to HR so that HR can maintain this documentation in a separate investigation file for future reference. The supervisor will keep his eyes open and decides to make a point to check in on Mike and Dave each morning and after lunch for the next week or so (Step 5).

Example 2: Reasonable Suspicion Confirmed, Drug Test Declined

The shipping supervisor, Tim, walks past Sandy in the packing department. Sandy stumbles into him. When Tim helps her up, he notices that her eyes are making unusual movements, and she seems confused and acts as if she does not recognize Tim.

Tim goes back to his office and calls in Sandy’s supervisor, John. Tim asks if John has noticed anything odd about Sandy lately. John states that Sandy has been very erratic, is coming in late, and never seems to be at her workstation when John walks through. John wrote her up just last week for both issues but admits he has not talked to her yet today (Step 4).

Tim relays what he had observed. John asks Tim to report this information to HR while he looks for Sandy (Step 1). When John finds her, she is standing at her workstation but is not working—she is staring off in a daydream. When John asks Sandy what she is working on, she does not hear him at first and then has a hard time focusing on him. Her eyes will not hold steady, her pupils are dilated, and she finally starts rambling on and on (Step 2). John asks Sandy to walk with him to the conference room and to remain there for a few minutes because he wants to talk with her some more (Steps 3 and 5).

HR’s office is across the hall, and Tim is already reporting what he has observed. John fills HR in on his additional observations. HR asks John to document what he observed (Step 4). After reviewing all the information, they agree to send Sandy for reasonable suspicion drug and alcohol testing. The HR manager calls a cab company to arrange transportation to the facility and prints out the drug testing consent form (Step 7).

John and the HR representative return to the conference room to meet with Sandy (Step 6). HR explains what had been observed today and states that to rule out the possibility that Sandy has violated the company’s drug and alcohol policy, they will send her for drug and alcohol testing.

Sandy starts crying and shaking her head. She balls up the drug test consent form, throws it in the trash, and stands up to leave. The HR representative explains that the test is the only way to rule out the possibility of policy violation (Step 6), but if Sandy refuses to sign the consent form and go for testing, it would be treated as a positive test and Sandy would be subject to immediate termination of employment.

Sandy pushes past her supervisor and runs out the door. John follows Sandy into the parking lot, pleading, “Sandy, I don’t want you to drive so upset. Listen, a cab should be here any minute. If you still don’t want to go for testing when it arrives, then I will pay for the cab to take you home.” Sandy drives away. HR wrote down her license plate and called the police. HR sends Sandy a termination letter in accordance with the company’s drug testing policy (Step 9).

Example 3: Reasonable Suspicion Confirmed, Drug Test Administered

Jane tells her manager that she suspects Joe in accounting had a few drinks at lunch (Step 1). She had suspected Joe was drinking at lunch in the past, but this was the first time she smelled the alcohol on his breath.

The manager asks Jane when and how she observed this, why she had suspected it before, whether she had observed any other concerning behaviors, and whether anyone else had witnessed or commented on this behavior (Step 1). The manager then approaches Joe’s workstation and asks him a few questions about the project he is working on today. During this exchange, the manager observes the smell of alcohol when Joe speaks; also, his speech is slurred, and he seems distracted and flushed (Steps 2 and 5).

The manager asks Joe’s lead to stop by Joe’s desk to drop off some papers and chat with him (Step 2). The manager asks the lead to let him know if he notices anything odd. The lead returns 10 minutes later and says that something was definitely off with Joe; he was talking slower and sounded as if his words were slurred. His desk was a mess (unusual for this employee), he was dropping papers and folders, and he even bumped into his own coffee cup.

They both document what they observed and call HR (Step 4). HR reviews their observations, prints off a drug test consent form and a copy of the drug and alcohol policy, and agrees they should send Joe for reasonable suspicion testing according to company policy (Step 5). The HR representative contacts a cab company and arranges for the cab to arrive in half an hour (Step 7). Then, they call Joe into a meeting with the manager and the HR representative (Step 6).

In the meeting, the manager explains what he had observed, and the HR representative confirms that he can smell alcohol on Joe’s breath. The HR representative explains that to rule out the possibility that Joe violated the drug and alcohol policy, they will send him for testing (Step 6).

After Joe signs the consent form, the HR representative explains that Joe would take a cab to the testing facility, and then the cab would take him home. Receiving the test results usually takes up to 48 hours, and, according to procedure, Joe would be called back to work after the results had come back (Step 8). An employee with negative test results would be paid for the days missed waiting for the results. 

Joe has a positive test result. The company procedure is to offer a last chance agreement to the employee, and Joe accepts this (Step 11). The company refers Joe to its EAP, and he signs the last chance agreement and puts in a request for Family and Medical Leave Act leave for treatment.