Reasonable Cause for Drug and Alcohol Testing, PLUSHow to Conduct Intelligent Workplace Investigations

Presented by: Synergy Human Resources

PART I: Reasonable Cause for

Drug and Alcohol Testing

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Introduction

Reasonable cause drug testing is one of the most valuable aids that a personnel department can have if it is properly used. There are very few reasonable cause drug tests being conducted. Perhaps too few.

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Introduction

Many managers are afraid of drug and alcohol testing. It is natural to try to avoid the issue. Managers also have a responsibility to the company and other employees to remove those persons from the workplace who are suspected of being impaired.

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Introduction

When a manager accuses an employee of being under the influence of illegal drugs or alcohol, they are subjecting themselves to accusations of unfairness. Most managers are not professionally trained to diagnose drug or alcohol impairment. By the time upper management looks into the issue the employee no longer appears impaired. As a result, the entire matter is one of differing stories and the only result is bad feelings on all sides.

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Introduction

Being impaired does not always mean using illegal drugs or alcohol. Individuals can be impaired by common prescription pain medications or muscle relaxants. While this is not illegal use, company policy should address the legitimate use of potentially impairing drugs in the workplace.

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Introduction

There are many other factors to consider when deciding if an employee is impaired. Is it possible that this employee is diabetic, perhaps undiagnosed? Does this employee have domestic or financial problems that are causing tremendous stress? Many of these types of problems will cause behavior that could be misunderstood as drug or alcohol impairment.

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Introduction

Because of the reasons outlined above, no accusation of impairment should ever be made. The employee is observed (preferably by two managers) and in private they are told, as a result of these observations it is believed that there may be a problem that effects their ability to do their job. In cases like this, company policy requires you to send an employee for a reasonable cause drug and alcohol test and allow a doctor to examine them.

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Introduction

The issue being discussed is the safety of the employee and their coworkers, not the tests or exam. Often employees will try to change the issue. Your company policy should include the fact that refusing to be tested has the same consequence as a positive result. Be sure to have the managers who witness the behavior document the facts leading to the decision to have the employee tested.

DOCUMENT ONLY THE FACTS!!! NEVER DIAGNOSE ANY PHYSICAL CONDITION!!!

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Recognizing the Signs and Symptoms of Drugs and Alcohol

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Signs and Symptoms

• Signs and symptoms of drugs and alcohol are used in determining if an employee may be under the influence of drugs and/or alcohol that would warrant the employee to be tested.

• In most cases the employee’s behavior will be inconsistent with their normal behavior due to the use of a controlled substance or alcohol.

• Abnormal behavior draws attention to the employee and, in most cases, establishes the opportunity for the supervisor to take proactive measures to determine drug/alcohol use.

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Some Causes of Abnormal Behavior

Stress

Work?

Home?

Kids

Family

Financial matters

Death in Family

Divorce

New Medications/Medical Problems

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Problems Caused in the Workplace

Accidents/Injuries

To himself/herself

To other employees

To members of the public

Lack of Productivity

Reduced or poor output

Increased workload on others

Theft

Violence

Increased liability to the Department

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Know Your Employees

• Know when they are stressed about something.

• Take time to listen.

• Always look for the warning signs that could indicate something is wrong.

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Warning Signs

Change in behaviors

Sudden swift mood changes

Easily angered

Absent from work

Away from job site

Inability to explain reasons for doing something

Things turn up missing

Frequent accidents / injuries

Tired all the time

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Drugs in The Workplace

The National Institute of Drug Abuse (NIDA) has identified the following drugs as the five drugs that are more commonly found in the workplace. These are referred to as the “NIDA 5”.

Alcohol, although not considered a drug, is also found in the workplace and is often the reason testing is ordered.

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Methamphetamines

Street names:

Crank, Crystal, Speed

Looks like:

White Powder, Pills, Rock resembling a block of paraffin

How taken:

Orally, injected, inhaled

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Methamphetamines

• Manufactured in bathtubs, barns, motels, cars (driving down the road).

• Highly explosive and contain materials with a base of ephedrine (what Sudafed is made of)

• Also contains many of these ingredients:

Red Phosphorous

Lighter Fluid

Drano

Acetone

Ether

Freon

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Methamphetamines

Signs and Symptoms:• Edginess• Nervous• Restless• Hard to sit still• Twitching, jerking movements (loss of motor skills)• Itching, scratching (they feel like bugs are crawling on

them)• Act very paranoid – feel people are out to get them and

can make the individual very aggressive and violent• Sweat a lot – even when it’s cold

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Methamphetamines

Signs and Symptoms:• Rapid, irrational and slurred speech• Grinding teeth• Runny nose• Sometimes bloody nose for no reason• Sudden weight loss (no desire to eat)• Sickly looking• Skin sores on the arms and face• Rotten teeth and gums• Poor personal hygiene• Extreme / bizarre behavior

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Methamphetamines

Long-term effects of heavy use:• Depression• Permanent psychological problems• Possible brain damage• Disturbance of personality development• Liver damage• Fatal lung and kidney disorders• Stroke or heart problems• Death

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Cocaine

Street names:

Coke, Snow, Nose Candy, Flake, Blow, Big C, Lady, White, and Snowbirds

Looks like:

White crystalline powder

How taken:

Inhaled, injected

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Cocaine

Effects

Produces brief but intense feelings of euphoria

Stimulates the central nervous system

Increases pulse, blood pressure, body temperature, and respiratory rate

Causes extreme excitability and anxiety

Produces sleeplessness and chronic fatigue

Dangers

Bleeding and damage to nasal passages

Paranoid psychosis, hallucinations and mental abnormalities

Impaired driving ability

Death caused by heart or respiratory failure

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Cocaine

Addiction

Cocaine users often become psychologically and physically dependent on the drug after relatively short periods of time

In many cases, crack use leads to virtual immediate addiction

Withdrawal

Withdrawal symptoms from cocaine are not as physically apparent as with many other drugs

The most profound symptom is an intense craving for the drug once use is discontinued

If the craving is not satisfied, the individual may experience irritability, depression and a loss of energy

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Crack Cocaine

Street names:

Crack, Rock, Freebase

Looks like:

Crystalline rocks that look like soap

How taken:

Smoked

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Crack Cocaine

• The high from the first hit is so intense that the user will do almost anything to try and get that feeling again.

• Many times this becomes a mission and everything else in life becomes secondary.

• Will have no interest in doing any work, and may become violent for any reason.

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Marijuana

Street names:

Pot, Reefer, Grass, Weed, Dope, Ganja, Mary Jane, or Sinsemilla

Looks like:

Parsley, with stems and/or seeds; rolled into cigarettes or cigars

How taken:

Smoked or eaten in brownies, stews and other goodies

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Marijuana

Effects

Euphoric feeling; increased sense of well-being

Lack of motivation

Lowered inhibitions, talkativeness

Dry mouth and throat

Increased appetite – “munchies”

Impaired coordination, concentration and memory

Increased heart rate

Dangers Deteriorating performance at

work “Burn out” involving muddled

thinking, acute frustration, depression, and isolation

Impaired sexual development and fertility

Damage to the lungs and pulmonary system (one joint is equal to 25 cigarettes)

Hallucinations and paranoia Increased risk to safety and

health as a result of impaired judgment and motor abilities

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Marijuana

“I was at a concert next to some people who were smoking some marijuana and I inhaled enough of the smoke and that made me test positive.”

While it is possible to produce levels of marijuana in a urine sample, cutoff levels were established in order to disallow a claim of passive inhalation.

To exceed the cutoff levels established by the United States Department of Health and Human Services, the individual would have to use marijuana in some manner (e.g., smoke, eat in food, etc.)

Heroin (Opiates)

Street names:Smack, Horse, Mud, Brown Sugar, Junk, Black tar, Big H

Looks like:White to dark-brown powder or tar-like substance

How taken:Injected, smoked, or inhaled

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Heroin (Opiates)

The physical effects of opiates depend on the opiate used, the dose, and how the drug is taken. Effects may include:

Short-lived state of euphoria, followed by drowsiness

Slowed heart rate, breathing, and brain activity

Depressed appetite, thirst, reflexes and sexual desire

Dangers

AIDS, blood poisoning, and hepatitis as the result of drug infection and use of unsterilized or “shared” needles

Death resulting from the injection of impure heroin

Death resulting from unexpectedly high purity or drug

Convulsions, coma, or death from overdose

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Heroin (Opiates)

Addiction

Opiates, particularly heroin, have an unusually high potential for abuse and addiction. Heroin addiction often leads to malnutrition, infection, and unattended injuries and diseases. Addicts tend to continue using the drug despite damaging physical and psychological consequences

Withdrawal

Following long-time or heavy use, withdrawal symptoms generally appear 4-8 hours after the last dose. Symptoms include chills, sweating, runny nose, irritability, insomnia, and tremors. These symptoms are usually worse 24-72 hours after onset, and can last from 7-10 days

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Heroin (Opiates)

“I had poppy seed muffins at breakfast before I went to take the drug test me I had failed the test.”

Much like marijuana, eating poppy seed muffins may produce a positive test in the urine sample. However, the cutoff levels are set at a level designed to eliminate this claim.

An individual would not be able to consume enough muffins to exceed the cutoff levels established by the United States Department of Health and Human Services.

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Alcohol

Prolonged, heavy use can lead to:

Isolation from family and friends

Difficulty handling daily problems

Learning and memory problems (users may remember less than those who don’t use alcohol)

Depression

“Blackouts” – users may forget whole blocks of time (and what they did or said)

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Alcohol

One drink can affect the:

Body

Alcohol enters the blood stream almost instantly

It travels to the brain and all the body organs

It depresses the central nervous system and impairs

thinking and reflexes

balance and coordination

vision

Mind In small doses, it can impair

judgment, leading to risk choices such as driving under the influence

In larger doses, users may feel confused and moody. Strong feelings such as anger, jealousy and depression can quickly lead to loss of self-control

Increasing the dose even more can cause alcohol poisoning, unconsciousness, coma, even death

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PCP

Street names:Angel dust, ozone, whack, rocket fuel, hog, love boat

Looks like:Liquid, white crystalline powder, pills, capsules

How taken:Orally, injected, smoked (sprayed on joints or cigarettes)

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PCP

The effects of PCP are:

Altered states of consciousness

Disorientation, confusion, and memory loss

Highly unpredictable, and bizarre or violent behavior

Extreme agitation

Impaired driving ability, and

Increased tolerance for pain

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PCP

Physical dependence on PCP has been documented and may be accompanied by memory loss, violence, weight loss, and paranoia. Symptoms of withdrawal include headaches, intense craving for the drug, increased need for sleep, and “flashbacks” for a period of years.

Even short-term use can be dangerous, causing mental changes resembling schizophrenia, severe depression, loss of learning abilities, and violent and other “intoxicated” behaviors resulting in bodily harm or death.

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Knowing the Signs

The indicators listed below are "warning signs" of drug and/or alcohol abuse and may be observed by supervisors:

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Knowing the Signs

Moods

• Depressed

• Anxious

• Irritable

• Suspicious

• Complains about others

• Emotional unsteadiness (e.g., outbursts of crying)

• Mood changes after lunch or break

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Knowing the Signs

Actions

• Withdrawn or improperly talkative

• Spends excessive amount of time on the telephone

• Argumentative

• Has exaggerated sense of self-importance

• Displays violent behavior

• Avoids talking with supervisor regarding work issues

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Knowing the Signs

Absenteeism

• Acceleration of absenteeism and tardiness, especially Mondays, Friday, before and after holidays

• Frequent unreported absences, later explained as "emergencies"

• Unusually high incidence of colds, flus, upset stomach, headaches

• Frequent use of unscheduled vacation time

• Leaving work area more than necessary (e.g., frequent trips to water fountain and bathroom)

• Unexplained disappearances from the job with difficulty in locating employee

• Requesting to leave work early for various reasons

Knowing the Signs

Accidents

• Taking of needless risks

• Disregard for safety of others

• Higher than average accident rate on and off the job

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Knowing the Signs

Work Patterns

• Inconsistency in quality of work

• High and low periods of productivity

• Poor judgment/more mistakes than usual and general carelessness

• Lapses in concentration

• Difficulty in recalling instructions

• Difficulty in remembering own mistakes

• Using more time to complete work/missing deadlines

• Increased difficulty in handling complex situations

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Knowing the Signs

Relationship to Others on the Job

• Overreaction to real or imagined criticism (paranoid)

• Avoiding and withdrawing from peers

• Complaints from co-workers

• Borrowing money from fellow employees

• Persistent job transfer requests

• Complaints of problems at home such as separation, divorce and child discipline problems

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PART II: Conducting Intelligent

Workplace Investigations

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Introduction

Several federal and state statutes, common law, and company HR policies impose on employers an obligation to investigate workplace issues. This may include:

• Theft - embezzlement

• Illegal drug and alcohol use

• Violence

• Harassment

• Discrimination

• Accidents

• Ethics violation

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Introduction

Public policy behind such laws appears to be an increasing concern regarding accidents and violence in the workplace. In addition, illegal drug and alcohol use by employees on the job creates high risk situations.

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Introduction

Anti-discrimination laws prohibit, among other things, harassment and discrimination based on an individual’s:

• Race

• Color

• Religion

• Gender

• National Origin

• Age

• Disability

• Sexual Preference

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Introduction

Negligence, gross negligence and misconduct also take other forms in the event of performance of one’s duties where there is a risk of harm to self or others.

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It is not enough to merely investigate. If allegations of wrongdoing or high risk actions are substantiated during the investigation, employers are also required to take prompt action to eliminate misconduct or risk to avoid liability.

To quote a recent decision from the U.S. Court of Appeals, once employers know of unlawful risk or conduct, they have a “duty to take reasonable steps to eliminate it.”

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Determining the steps to follow during the course of an investigation, and when to conduct them, is not always easy.

From a practical standpoint, the safest and easiest course is for employers to treat all issues seriously, and to be consistent in application of any results with corrective actions.

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Investigations should occur, as you may imagine, for a variety of reasons. Situations may arise regarding: workplace accidents, violence threats, substance abuse issues, high risk (dangerous) behavior and, of course, harassment.

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How to Proceed

Investigations should begin immediately upon receiving or hearing about an issue or complaint. Quick action helps to avoid any escalation of a problem or increasing danger.

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Employees’ and witnesses’ memories tend to be more accurate when they are questioned soon after the occurrence of an incident.

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When talking with the injured, the complainant, the accused, and witnesses, gleaning all the information is important.

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At the outset of each interview, which should be done by two employee representatives, employers should explain to the person being interviewed that absolute confidentiality will be impossible, but that all efforts will be used to limit the scope and content of any information shared with others only on a need-to-know basis.

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To avoid liability for false imprisonment claims, employers should always interview employees during regular business hours, in familiar surroundings.

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It is inappropriate to have an employee be represented by an attorney in an internal investigation. An employee has no legal right.

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Employers should request specific details with respect to:

• The place of the event

• The time of the event

• Witnesses who were present, and

• The number of times the conduct occurred

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If inflammatory speech is involved, employers should find out exactly what was said and with whom, if anyone, the events were relayed to, and when. Remember, you are gathering the facts. What led up to incident(s) is critical.

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Be sensitive to the fact that the information to be communicated can be embarrassing during the interview, so keep the number of individuals present in an interview limited to only the necessary parties.

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Take specific notes of what is said.

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Be sure that the people chosen to interview the parties and witnesses do not intimidate the interviewees. If the atmosphere is intimidating or uncomfortable, the simple result is that the interviewee may not provide much information.

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As an example, two females interviewing a male victim of sexual harassment are not likely to get fully descriptive details of events, particularly if either of them know the accused.

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Where possible, avoid using names of the parties involved, particularly when interviewing witnesses.

Ask open-ended questions.

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Similarly, instruct those whom are interviewed not to discuss the contents of the conversations they have had regarding the charges or people involved in the allegations. Explain that this request is designed to protect all of the parties involved, as well as to ensure the integrity of the investigation.

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If there is an accused, tell the accused that, as an employer, the company has a legal obligation to investigate all claims, especially those of harassment and discrimination.

Let the accused know, however, that all judgments will be reserved until the conclusion of the investigation.

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At the same time, counsel the accused employee that he or she may not retaliate against the person claiming the unwanted conduct, harassment, or discrimination. Explain that the law forbids anyone from engaging in such retaliation.

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Caution must also be taken to limit potential exposure to claims brought by the employee being investigated.

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In a recent court decision, an employer terminated a female employee after a private investigator followed the employee to a bar and confirmed she consumed several alcoholic drinks before driving the company van, in violation of company policy.

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The court held that the employer may have violated the employee’s rights under the Americans with Disabilities Act when it gave her a choice of termination or attending a treatment program, because the employer improperly perceived the employee to be an alcoholic.

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Another problem with the employer’s action in this case was the fact that it had not given this same choice to male employees in similar circumstances.

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Conduct the investigation as quickly and efficiently as possible. The longer an investigation carries on, the greater the disruption to the workplace and the greater the likelihood that mistakes will occur that can be costly in terms of legal liability.

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Be very careful to understand whether this conduct being complained of involved co-worker harassment or whether it was a supervisor harassment.

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If it was a co-worker harassment situation, the plaintiff must prove the employer knew or should have known of the harassment and failed to take prompt corrective action.

Thus, the employee would have the burden of proof.

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In cases of supervisor harassment, it is the employer who bears the burden of proof.

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Regardless of whether the alleged harasser is a supervisor or a co-worker, the best way to avoid liability is to take prompt and effective remedial action which legally requires an adequate investigation of any complaints.

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Dos and Don’tsWhen Receiving a Complaint

The individual who receives a complaint, whether it be the supervisor or an HR professional, should generally observe the following dos and don’ts:

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DO When Receiving a Complaint

• Be open and receptive to a complaint. The company wants to know (or should want to know) of any inappropriate behavior in the workplace

• Take the complaint seriously, show concern, do not make jokes

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DO When Receiving a Complaint

• Be non-judgmental in terms of whether you believe the complainant or not. Your first impression may be incorrect.

• Follow company procedures. Generally, this means informing human resources.

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DO When Receiving a Complaint

• Respond promptly. Don’t let it drag out.

• Take immediate steps to correct serious risks, such as threats of violence or allegations of violence, even if you do not have time to first complete an investigation. Carefully consider separating the “victim” from the “harasser” pending the investigation.

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DO NOT When Receiving a Complaint

Do not act as gatekeeper. Pass all relevant information on to human resources, even if the victim asks you not to do anything about his or her complaint.

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DO NOT When Receiving a Complaint

When conducting witness interviews, do not indicate whether you believe or disbelieve an employee’s account. No decision should be made before a complete investigation has been conducted and you have gathered all the facts.

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DO NOT When Receiving a Complaint

Do not promise a victim or witness that they will remain anonymous, or that the interview will be kept confidential. It is usually appropriate to tell the victim or witness that what is said in the interviews will be kept as confidential as is reasonably possible, given the circumstances and given the company’s legal obligation to respond to the complaint.

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DO NOT When Receiving a Complaint

Do not make any promises about how the complaint will affect anyone’s job, except to assure the victim that no retaliation will be made for a complaint made in good faith. Often, employees accused of harassment will want to know immediately if their job is in jeopardy. Although it is generally inappropriate to assure an accused harasser that his or her job is safe, it is generally appropriate to assure him or her that no action will be taken until a thorough investigation has been conducted, and they have had an opportunity to tell their side of the story.

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DO NOT When Receiving a Complaint

Do not retaliate against the complainant, and instruct the accused harasser not to do so.

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Interviewer Open-ended Questions

• Describe everything that happened in detail (Every incident that occurred, exactly what this witness heard or saw).

• What was the context of the behavior, as in where were they, what were they doing, why were they there?

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Interviewer Open-ended Questions

• When did the incident occur?

• Who else was present, and what, if anything, did they see or hear?

• What, if anything, did you do about the incident? (for example, did the witness tell the harasser to stop?)

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Interviewer Open-ended Questions

• What, if anything, did you tell others about the incident?

• Have you heard anyone else discuss the incident, and, if so, what did you hear?

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Reaching a Conclusion

Normally, this will require the investigator to decide whether the actions did or did not occur, and whether the conduct violates a company policy. Even if it didn’t contradict a specific rule, was the conduct inappropriate or risky?

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Reaching a Conclusion

There is no clear legal standard for making personnel decisions based on a workplace investigation, such as beyond a reasonable doubt or preponderance of the evidence. It is reasonable to adjust the proof required and/or the actions taken based on the seriousness of the allegation.

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Reaching a Conclusion

The results of an investigation may turn solely on the credibility of witnesses, particularly in a case where the only witnesses are the complainant and the alleged harasser.

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Reaching a Conclusion

In making such determinations, the investigator should be able to explain why one witness was more credible (e.g. one witness had a greater motive to lie, or a reputation for truthfulness, there were inconsistencies in witnesses’ stories, or one witness’s body language was defensive and/or inappropriate to the context, as in not acting surprised upon hearing the allegation).

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Reaching a Conclusion

It is appropriate to instruct each person interviewed that this is an important process and that the witness needs to be completely truthful.

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Reaching a Conclusion

The investigator must keep the process confidential to the greatest extent possible. The investigator should discuss the matter only on a strict, need-to-know basis, and should not engage in gossip.

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Reaching a Conclusion

Witnesses who are interviewed should be told that they are not to discuss confidential matters with anyone at work or outside work.

Breaches of confidentiality may subject the company or the witness to claims of invasion of privacy or defamation by the complainant and/or the harasser.

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Reaching a Conclusion

In addition, breaches of confidentiality may subject employees to retaliatory actions by others.

Finally, if the story gets out before interviews are conducted, employees who have not yet been interviewed may, intentionally or unintentionally, alter their version of the facts based on what they have learned from others.

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Reaching a Conclusion

Documentation of the investigation (crime witness notes, etc.) should not be placed in the harasser’s or victim’s personnel file.

Investigation materials may contain confidential witness statements that would be inappropriate to provide to the perpetrator or victim.

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What If…

Although an investigator undertakes an inquiry with the expectation or hope that “the truth” will be uncovered, often the waters are murkier after the investigation than before.

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What If…

Investigators are reluctant to make a firm decision where there are no independent witnesses and the alleged harasser and victim have diametrically opposed versions of the event (a he-said/she-said case).

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What If…

If the conduct cannot be confirmed or disproved, that should be the investigator’s conclusion, and a common approach is to reinstruct all parties in the company’s discrimination and harassment policies, complaint procedure, and risk avoidance approach.

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What If…

The employer should also conduct additional training of the individuals and/or the workforce on diversity and harassment issues, accident prevention, and risk assessment processes, and consider or invite any request to be transferred out of the department in which the events allegedly occurred.

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Contact Information

Mike Bourgon651-270-2281mike@synhr.com

Kevin Ryan612-280-5484kevin@synhr.com

Michael Conroy651-325-5395 mconroy@synhr.com

www.SynHR.com1-888-603-7872

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