EdLawConnect Blog

We are often asked by clients how to respond when an employee at work is suspected to be under the influence of an intoxicant or controlled substance. The protections that most public employees enjoy from drug and alcohol testing principally derive from the prohibitions against: (1) "unreasonable searches and seizures" and (2) "unwarranted invasion of personal privacy." Your response is partly determined by whether the employee appears to be under the influence of alcohol or a controlled substance.

An employee can be required to meet with a supervisor in order to determine whether the employee is under the influence of alcohol or a controlled substance. Before doing so, document the facts (odor, speech, balance, eyes, etc.) which are the basis for your suspicion. In the case of alcohol, "reasonable suspicion" may be established by lay person observation. A trained observer, such as a law enforcement officer or Transportation Supervisor, may observe the employee to corroborate lay person observations. In the case of a controlled substance, visual examination by a trained observer is necessary to establish “reasonable suspicion.”

The scope and intrusiveness of such a meeting must be reasonably related to the objective of the search. Thus, an initial examination must be minimally intrusive. If the observable facts support a conclusion that the employee is under the influence of alcohol or a controlled substance, a more intrusive search might be conducted.

A lawful search can always be conducted with the employee’s consent. Inform the employee of your suspicion and ask the employee whether they are under the influence of alcohol or a controlled substance. If they say “yes,” ask them when and what they ingested and document the employee’s statements. If they say “no,” ask the employee to consent to drug or alcohol testing in order to disprove the suspicion. If the employee declines to consent to alcohol or controlled substance testing: document the incident, place the employee on administrative leave and arrange for transportation home (do not let them drive their own vehicle).

The least intrusive test for alcohol is a breath test. For controlled substances, the least intrusive test is urinalysis. In some communities, local law enforcement may be available to conduct an alcohol breath test. A valid controlled substance test may only be conducted in accordance with established and proven clinical procedures (e.g., Omnibus Transportation Employees Testing Act for commercial drivers).

An employer who has documented reasonable suspicion that an employee was under the influence of an intoxicant at work may give the employee reasonable corrective directions to prevent the same or similar conduct from occurring in the future. Warn the employee in writing that he or she will be required to submit to drug or alcohol testing in the event the same or substantially similar conduct at work is observed in the future. Such a warning diminishes the employee's reasonable expectation of privacy regarding any future drug or alcohol testing. If you do not have a past practice of requiring reasonable suspicion testing drug or alcohol testing, be prepared for a possible demand to bargain from the union. (E.g., Holliday v. City of Modesto (1991) 229 Cal.App.3d 528.)

If the employee is later observed at work to be under the influence of alcohol or a controlled substance, visually examine and document the employee's behavior and appearance. If you have facts to support a reasonable suspicion of alcohol or controlled substance use, inform the employee of the suspicion, ask the employee whether they are under the influence and ask the employee to consent to alcohol or drug testing. If the employee declines, remind the employee of the previous written warning and advise the employee they may be subject to disciplinary action for failure to comply with your directive. Employees will usually consent to and cooperate with testing after being reminded of a previous written directive. If the employee refuses to cooperate, document the incident, place the employee on administrative leave and arrange for transportation home. At this point, the employee might be subject to some administrative action for failure to follow directions.

Before implementing any administrative action for refusing to cooperate with drug or alcohol testing, we strongly recommend you consult with legal counsel regarding the factual basis for the administrative action, any further investigation that may be warranted, potential reasonable accommodation considerations, and the likelihood of success in the event of an administrative hearing or unfair labor practice charge.