Vial Behavior: When Does Employee’s Unusual Conduct Allow for Immediate Drug Test?
We all have our days when we show up to work with a little red eye, in a bad mood and maybe even a bit “word challenged.” But when do those signs signal that an employee should be sent for a drug test? And how do you prevent claims of discrimination for singling that employee out? A court ruling last week gave great insights into making sure your drug testing policy and practices are properly aligned with the law …
Case in Point: Marcus Berry, who is black, worked as a bricklayer for an Indiana company. One day he bumped into a table in the lunchroom, causing coffee to spill onto the lap of one of his white co-workers. The two men argued loudly and then threw cups of coffee at each other.
Berry’s supervisor soon got involved and heard Berry exhibiting, “abnormal speech, screaming, yelling, facial expressions” and “spitting, slurping” speech. The supervisor ordered him to take a drug test.
Berry argued that he didn’t need a drug test and he was merely being “boisterous” because he was partially deaf in one ear. He took the test anyway. It came back positive for cocaine. Berry was fired for violating the company’s drug policy.
Berry filed a discrimination claim against his employer, alleging he was singled out for a drug test because of his race. He argued that the other employee involved should also have been tested because of his own loudness.
The supervisor testified he was just following procedures because, as he stated in his deposition, Berry’s behavior was abnormal, not just loud. “Definitely, something was wrong with Berry,” said the supervisor.
Verdict: The court found that Berry’s supervisor acted in line with company policy by ordering the test based on his perception of Berry’s erratic behavior. Company policy stated, “Any employee suspected of being impaired by drugs may be required to submit to a drug screening test to determine their fitness to work.”
The court said that, under the company’s policy, “It is (the supervisor’s) perception that matters … and he testified that he perceived (Berry) to be loud and out of control,” not the white co-worker. (Berry v. ArcelorMittal USA LLC, N.D. Ind., 4/10/13)
3 Lessons Learned … Without Having To Go To Court
1. Have a drug testing policy. The court recognized that even a short written policy will go a long way to shield your company from discrimination lawsuits. Don’t forget to have one on alcohol, too. It can even be in the same policy.
2. Have a separate drug checklist. Managers need a tool to use as a guideline to help them document the situation. The court observed the manager checked the box next to “conflict with employee(s)” as the reason for ordering the drug test and the boxes next to “speech rambling or tangential,” “speech fast or pressured,” and “yelling” as behaviors, he witnessed.
3. Pick and tell. There are many types of substance testing your company can utilize. Be specific about all that apply: pre-employment, random, reasonable suspicion and post-accident.
Drugs in the Workplace: Signs to Look For & Sample Policy
When drugs don’t seem to present a problem within a company, it’s easy to develop a cavalier attitude about them. That’s not smart. Drug abuse often begins with a single offender and then spreads, sometimes with frightening speed.
Experts say your best defense is to detect drug abuse when it first appears and to root it out immediately. That’s easier said than done. But by staying in touch with your staff, you’ll know what is normal behavior for them and be able to notice when something is off-center.
6 signs to look for:
- Accident proneness. Some drugs interfere with eye-hand coordination, causing employees to stumble or fumble with equipment.
- Inattention or forgetfulness. Sometimes a supervisor’s request or instructions may fail to register with an employee who is high.
- Absenteeism. Be suspicious of an increase in sick days. Drug users miss work about twice as often as other employees.
- Personality change. Irritability or depression often follows a cocaine high. The high itself may be signaled by euphoria.
- Sudden increase in productivity. In the early stages of cocaine use, some individuals perform better because the drug accelerates their heart rate, increases blood pressure and stimulates their nervous system.
- Falling productivity. Marijuana makes some people inattentive to deadlines or unable to gauge quality. Over time, cocaine interferes with the heart and nervous system, causing mental and physical dysfunction.
ONLINE RESOURCE: For more tips on responding to drug use at work and drafting a policy (and to download a sample policy you can adapt for your organization), access our free Drugs in the Workplace primer at www.theHRSpecialist.com/drugs.
