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What to Do If You Suspect an Employee Is on Drugs

By George Khoury, Esq. | Last updated on

There can be times when employees are just acting so strangely that managers or business owners have to ask themselves: Is my employee on drugs? Generally, if an employer has actual evidence of illegal drug use by on duty employees, then there will be good cause for immediate discipline including termination, particularly if they are putting the safety of others at risk.

However, if an employer only has a suspicion that an employee is on drugs, then more evidence should be gathered before any decisions are made or actions taken. If the drug use is related to a medical condition, then there may be protections under disability law and seeking an attorney's assistance is recommended. Alternatively, if there is a problem with the use of illegal, and even legal, recreational or recommended, drugs (i.e. marijuana and alcohol), then disability protections will not apply.

Counseling and Treatment

In small business, oftentimes, a change in just one employee's behavior can be highly noticeable, and have massive impacts on overall productivity or revenue. However, that one employee may have been a cornerstone of the business for years. Loyal employees in small business are crucial, and often small business teams become like family. So long as no irreversible, cataclysmic errors were made, one approach employers may consider is talking to an employee that may have a substance abuse issue to try to understand what is going on.

While the law sides with employers who terminate employees that have substance abuse problems, employee morale is rather fragile and should always be considered when making changes to small, close-knit teams. Offering an addicted employee time off to get treatment, or assistance with paying for treatment could go a long way in helping to keep morale up. You can even consider holding their position open for them, if they can complete treatment.

Drug Test and Discipline

While drug testing at work is often a controversial subject, the requirements are pretty clear and easy to follow so long as you're not doing "random" drug tests, or testing whole departments in order to catch one suspected person. If an employer has a reasonable suspicion of an employee's drug use, which can vary depending on whether the employee has a job that could pose a safety risk to others, then drug testing will generally be considered okay. What's considered a reasonable suspicion can also be rather flexible, as erratic behavior and even poor, or uncharacteristic, performance can be considered as reasonable suspicion.

If you have a reasonable suspicion of an employee's drug use, so long as you follow your state's laws for performing an employee drug test, there is generally no legal concern. If the test comes back positive, you will usually be clear to terminate, or discipline the employee, for cause.

Lastly, if you don't have a drug or alcohol policy, or a code of conduct, for your business, consider contacting a business attorney to help you draft one.

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