How to Document Reasonable Suspicion

What  should employers do if they suspect an employee is under the influence of drugs or alcohol at work? This guide presents the steps management should take to properly execute and document situations under a drug and alcohol testing policy. These steps were written with the assumption that the organization has a clearly written drug and alcohol policy that includes drug and alcohol testing for reasonable suspicion. A general policy statement is not enough to permit testing; if the policy does not include testing for reasonable suspicion, employers may want to consult their legal counsel to determine if this is a type of policy their organization should implement.

Step 1: Receive Complaints

Concerns that an employee is under the influence often come from co-workers or even clients or vendors before a supervisor or manager notices. Managers or HR professionals do not want to send an employee for testing based on hearsay or gossip, but they should document the complaint or concerns of co-workers who bring this information forward. Managers or HR professionals should take a few extra minutes to ask what the employee observed, when the employee observed it and if others witnessed or commented on this situation. The employer should also determine if the behavior is new or has happened in the past (possibly indicating a pattern of behavior).

Step 2: Observe the Employee

Firsthand observation should be made by two members of management. Immediately upon notice of this type of concern, the employee's supervisor, an available manager or HR personnel should go to this employee's work area for firsthand observation. The observer may be able to view the employee from afar, but usually he or she will need to talk with the employee directly to observe any smell of alcohol, eye dilation, slurred speech or other behaviors. The supervisor, manager or HR professional who performed the initial observation should seek a second member of management or HR to confirm initial suspicions. The second observer should perform his or her own firsthand observation of the employee.

Step 3: Remove the Employee from Safety-Sensitive Areas

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

Step 4: Document Observations

Both observers should clearly document their observations, including any abnormal behaviors. The observers should be as specific as possible in their descriptions but not attempt to diagnose the situation. For example, an observation may include:

• Odors (smell of alcohol, body odor or urine).
• Movements (unsteady, fidgety, dizzy).
• Eyes (dilated, constricted or watery eyes or involuntary eye movements).
• Face (flushed, sweating, confused or blank look).
• Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts).
• Emotions (argumentative, agitated, irritable, drowsy).
• Actions (yawning, twitching).
• Inactions (sleeping, unconscious, no reaction to questions).

Step 5: Assess the Situation

After the situation has been clearly documented, managers or HR staff need to assess what they know and observed to determine next steps. If both observers witnessed behaviors that create a suspicion and the documentation supports this suspicion, then managers or HR may proceed with Step 6. If there is disagreement, managers or HR may need to bring in a third party to also observe and help make a determination. Managers or HR may decide that a reasonable suspicion of use of drugs or alcohol does not exist and that no further action is necessary other than documentation of the complaint and subsequent observations.

Step 6: Meet with the Employee

When reasonable suspicion testing is warranted, both management and HR should meet with the employee. Those leading the meeting should clearly explain what has been observed and documented by management and that, in order to rule out the possibility that the employee is in violation of the company's drug and alcohol policy, the organization will send the employee 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, and if the employee is 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, the manager or HR staff member should have a consent form available at this meeting for the employee's signature.

Step 7: Prepare Transportation

Employers should not allow employees suspected of being under the influence behind the wheel of a car; therefore, the manager or HR should ensure the employee does not have to drive to the testing center or home afterward. Often employers coordinate with a local cab company for these types of trips. The cab fees and tip should be paid by the employer. The manager or HR will need to coordinate with the cab company or driver on whether the employer can be billed or must pay upfront. It is a good idea to work out this arrangement in advance 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: Send the Employee for Testing

The manager or HR should contact the drug test facility to advise that an employee is on the way for reasonable suspicion testing. The employee should be given the number for the cab company to call after the testing to arrange a ride home.

Step 9: 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, the employer should set a consistent practice. In most cases, the employer does not want an employee to return to work until the test results are available. Employers are not obligated to pay a nonexempt employee for any time or days he or she must spend off work waiting for test results; however, the employer may be required to pay exempt employees for this time off work according to the Fair Labor Standards Act salary basis (29 C.F.R. §541.602).

Step 10: Respond to Employee's Refusal to Take the Test

If the employee refuses to be tested, the employer should refer to its drug and alcohol policy. A policy may state that this refusal will be treated as a positive drug test result or will result in immediate termination of employment. If the employee refuses a cab and 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.

Step 11: Respond to Negative Test Results

If the drug or alcohol test results are negative, the manager or HR should contact the employee and return him or her to the previous job and work shift as soon as possible. Many employers pay the employee for all work shifts and hours he or she missed while waiting for the negative test results (even if the employee is not required to be paid).

Step 12: Respond to Positive Test Results

Again, the employer must refer to its 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. 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 he or she will be terminated if 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 precedence. Organizations may wish to seek legal counsel on how to proceed.

Examples

Scenario 1

The supervisor of a two-person department receives an e-mail from employee Mike stating that he thinks Dave, the other employee in the department, is coming to work drunk. The e-mail 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. The supervisor thanks Mike for coming forward with his concerns and asks Mike to let him know immediately if the situation happens again, and if the supervisor is not in the office, to contact HR or the department head. The supervisor meets with Dave but observes no signs of Dave being under the influence at work. 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.

Scenario 2

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 had been very erratic, that she is coming in late and that she 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. Tim relays what he had observed. John asks Tim to report this information to HR while he looks for Sandy. 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 finally she starts rambling on and on. 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.

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, and after reviewing all the information, they agree to send Sandy for reasonable suspicion drug and alcohol testing. The HR manager calls the cab company to arrange transportation to the facility and prints out the drug testing consent form.

John and the HR representative return to the conference room to meet with Sandy. 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 and 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, but if Sandy refuses to sign the consent form or 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 had written down her license plate and calls the police. HR sends Sandy a termination letter in accordance with the company's drug testing policy.

Scenario 3

Jane tells her manager that she suspects Joe in accounting had a few drinks at lunch. She had suspected Joe was drinking at lunch in the past, but this is the first time she smells the alcohol on his breath. The manager asks Jane when she observed this and how, why she had suspected it before, if she observed any other concerning behaviors, and whether anyone else commented on this behavior or witnessed it. 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. The manager asks his lead to stop by Joe's desk to drop off some papers and chat with him. 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), and he was dropping papers and folders and even bumped into his coffee cup. They both document what they observed and call HR. 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. The HR representative contacts the cab company and arranges for the cab to arrive in half an hour. Then they call Joe into a meeting with the manager and the HR representative.

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

After Joe signs the consent form, the HR representative explains that he 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 come back. An employee with negative test results will 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. 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 (FMLA) leave for treatment.