How does an employer handle a potential issue where an employee is suspected to be using illegal drugs?
While you should have “just cause” or reasonable suspicion before confronting an employee, you may still have a factual conversation about observed workplace behavior. Exercise caution about business necessity if prescription medication may be involved, since situations can implicate the Americans with Disabilities Act (ADA).
Reasonable suspicion is not rumor or speculation; it must be based on specific, objective facts and rational inferences from observing an employee’s behavior. The evidence supporting reasonable suspicion does not need to rise to the level of probable cause but should be grounded in observable signs such as performance lapses, inability to respond appropriately, or physical symptoms of impairment.
Signs that may indicate drug or alcohol use
- Odor of alcohol
- Odor of marijuana
- Slurred speech
- Fast speaking out of the ordinary
- Flushed, swollen face
- Red or runny eyes or nose
- Pupils dilated or constricted, or unusual eye movement
- Lack of coordination
- Tremors or sweats
- Weariness or exhaustion
- Sleepiness or unusual hyperactivity
Even when facts point toward reasonable suspicion, ordering drug testing can be legally and practically risky. Best practices include documenting observations, having two witnesses (one a supervisor) confirm the behavior, training supervisors to recognize signs, and escorting the employee to and from the testing facility.
Employers should have a written substance abuse plan and clear policy in place before taking any testing or disciplinary action; for related workplace resources, see Workplace Drug and Alcohol Abuse, OSHA Programs, and Safety Incentives.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert and spent 17 years in employment practices litigation.
For additional context on employment considerations, see The Impact of Drug Abuse on Employment and Insurance. If you need help implementing a policy or reviewing options, talk to an agent.
Frequently Asked Questions
What counts as reasonable suspicion?
Reasonable suspicion is based on specific, objective observations and inferences such as odors, behavior changes, or performance problems rather than rumors.
Can I require drug testing without the employee’s consent?
Requirements vary by policy and jurisdiction; employers should follow their written policy and consult HR or legal counsel before ordering tests.
How should I handle an employee who reports prescription medication use?
Assess the business necessity, consider accommodations under disability laws, and avoid assumptions—focus on observable work performance and safety concerns.
What should a workplace substance abuse policy include?
A clear policy should define prohibited conduct, outline testing procedures, describe disciplinary steps, and explain available assistance or referral options.