Q. Can we suggest psychiatric help for an employee who we suspect may be having trouble with substance abuse? And can we require a random drug test? —H.J., Texas
A. Suggesting psychiatric help for an employee (or any medical treatment, for that matter) is risky business because it opens the door to a “perceived disability” claim—i.e., you're regarding the worker as disabled because of what you assume is going on. If you make the suggestion, you shouldn't ask the worker's health care provider any questions because it could be seen as an unlawful inquiry under the ADA.
A better idea: If your company sponsors an employee-assistance program (EAP), make sure the employee knows it's offered as a benefit. About 20 states have laws regulating drug testing of employees, and some allow it only in very limited circumstances or in a narrow range of job categories. Texas has no law.
Even so, companies are generally safe in administering drug tests in three situations: (1) during pre-employment; (2) after the occurrence of a preventable accident; and (3) where there is reasonable suspicion of drug abuse.
Caution: Drug testing is a legal minefield. Some courts say random drug testing violates employees' privacy. Before starting any testing, run it by your lawyer.
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