Don’t Let Your Reasonable Suspicion Cross Over into a Violation of the ADA

April 7, 2020 - minute read

Imagine coming to work and noticing that an employee is acting differently. The change in behavior is impacting the employee’s work performance and that of their team’s. You begin to suspect that this individual may be under the influence of drugs or alcohol while on the clock - a clear violation of your company’s policy. However, you aren’t sure how to address this concern. What can be done?

For employers of an hourly workforce, situations like these are all too common. Luckily, reasonable suspicion provides employers with clear guidelines for objectively determining whether an employee is under the influence of prohibited substances at work. That said, there are many explanations for irregular employee behavior and asking too many initial questions could get you in trouble with the Equal Employment Opportunities Commission (EEOC) and Americans with Disabilities Act (ADA).

For instance, the reason for an employee’s strange behavior could be a sign of a physical or neurological disability, mental illness, medication complications, legal drug use (i.e. cannabis), or some other highly sensitive circumstance. That is why determining whether an employee is exhibiting signs of substance use - as opposed to a protected disability - is so important for avoiding liability! Let’s take a closer look at how your organization can conduct reasonable suspicion procedures while balancing ADA concerns.

The Americans with Disabilities Act (ADA)

Mishandling reasonable suspicion can undermine the stability of your organization, so it is paramount that you avoid any actions which may be considered discriminatory or non-compliant.

Before we walk through the key steps of reasonable suspicion, there are several aspects of the ADA worth establishing:

  • Employers are required to make accommodations for employees with disabilities so long as the accommodation(s) do not create undue hardship for their organizations.
  • The most common disabilities protected under the ADA include: musculoskeletal problems, cardiovascular conditions, senses and speech issues, respiratory illnesses, neurological disorders, mental disorders, immune system disorders, and more. For a full list, visit the Equal Employment Opportunity Commission’s page on discrimination types.
  • The ADA treats alcohol and illegal drug testing differently based on their legal statuses. Prescription drug use to treat a disability is protected under the ADA, provided that the employee can still perform the essential tasks of his or her job.
  • If an employee’s drug test reveals the use of legal prescription drugs or a disability, employers are required to treat the drug test results as a medical record and keep them separate from the rest of the employee profile moving forward. Confidentiality matters!

By keeping these additional guidelines in mind, your organization is less likely to mismanage an investigation or unintentionally discriminate against individuals of a protected class. Furthermore, assisting those employees with disabilities serves to improve performance and safety for all parties involved.

Reasonable Suspicion Steps for Success

Reasonable suspicion is the best way to approach the possible use of banned substances within your workforce. Outlined below are the basic steps for proceeding when an employee exhibits unusual behavior:

  1. If the behavior is reported to you, go to the site and try to observe the behavior yourself.
  2. Once the behavior is reported and observed by two separate individuals – showing signs of drug or alcohol use as dictated in your employee handbook - have all reportees complete a document attesting to the behaviors noticed. Documentation of the process is critical to reasonable suspicion drug testing and firing.
  3. Next, set up a time to sit down with the employee. Make sure to keep the conversation focused on work performance and conduct. If, during the disciplinary meeting, the employee raises the issue of a possible disability and/or need for accommodation, then the ADA’s interactive process may begin and the employer may make further limited medical inquiries.
  4. If the employee does not raise an issue of a possible disability and/or need for accommodation, lay out the recorded evidence and next steps. Then, carry out compliant testing (as regulated by your state), provide drug test results as soon as they are received, and conclude with your pre-established disciplinary actions if the test comes back positive.

Looking for more insight into successful reasonable suspicion? Check out our reasonable suspicion webinar!

Performance Management with EPAY Systems

When it comes to managing an hourly, distributed workforce – there are a lot of factors which can affect employee performance – not just prohibited substance use on the job. That’s why it is so important to track things like performance issues, consolidate employee reviews, track goals and achievements, and monitor problems throughout the year!

With EPAY’s Performance Management platform, you’ll be able to automate appraisals, create trustworthy reviews, and give your workforce the tools to align their objectives for optimal success. Check out our 2-minute tour and request a demo today!

Filed Under: Workforce Management ADA