Drugs, Alcohol and Workplace Policies

The latest statistics from the National Institute on Alcohol Abuse and Alcoholism shed a grim light on addiction in the United States. According to the Institute’s 2023 national survey, over 10% of people ages 12 and older have an Alcohol Use Disorder. With numbers that high, it is not surprising that many employers find themselves dealing with alcohol or drug abuse on the job.

Employee Protections and Addiction

Many employers are hesitant to take action when an employee has an issue with alcohol or drugs in the workplace, for fear of legal action. It is important to understand when the protections start and how far they extend into the workplace.

Alcoholism and drug addiction may be considered a protected disability under state and federal law, but employers can still enforce their drug and alcohol policies to prohibit the possession, use, or impairment at work. The California Labor Code expressly states that the law does not “prohibit an employer from refusing to hire, or discharging an employee who, because of the current employee’s use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others”.

The protections available to those battling addiction to drugs or alcohol include:

• The California Family Rights Act (CFRA), which entitles employees to up to 12 weeks of job-protected leave for alcohol-related disabilities. After the 12 weeks, extended leaves of absence may be a further, reasonable accommodation under both California and federal law.
• The requirement to accommodate employees when they return to (or remain in) the workplace, which may include granting time off or intermittent leave to attend Alcoholics Anonymous meetings or other support groups.
• California’s Labor Code (Labor Code §§ 1025 to 1028), which requires a private employer with 25 or more employees to accommodate an employee who voluntarily requests to enter and participate in an alcohol rehabilitation program. Such a request may be denied only if doing so would impose an undue hardship on the employer. What is unclear is how many times an employee can request such an accommodation, and whether an employer can require an employee to execute a “Last Chance Agreement” to prevent abuse of Labor Code section 1025. Employers should consider consulting experienced employment counsel before presenting an employee with such an agreement and acting on any violations of it.

Additionally, as a reminder, AB 2188, which became effective on January 1, 2024, prohibits discrimination in hiring, termination, or any term or condition of employment, or taking adverse action against a person for using cannabis while off the job and away from the workplace.

There are some exceptions to AB 2188. It does not apply to:

• Employees in the building and construction trades
• Positions requiring a federal background investigation or clearance
• It does not preempt federal contractor requirements

Disciplining Employees

While these protections are meant to help employees seeking rehabilitation or partaking in recreational use of legal drugs outside the workplace, it is important to remember that none of these laws permit an employee to be under the influence of drugs or alcohol while at work. California’s cannabis protections explicitly state that nothing in the law “permits an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace”. This mirrors the Labor Code’s language regarding the use or possession of alcohol in the workplace.

When the issue arises in the workplace, what should you do as an employer?

• Refer to your policy. A clear drug and alcohol free workplace policy is the first place employers should start to prevent or deal with issues of intoxication on the job. Ideally managers, supervisors, leads, etc. should be trained on your policy as well as on how to identify employees under the influence in the workplace. If the organization chooses to enforce reasonable suspicion testing, it should be noted in the policy and management should be trained on the process to determine if an employee should be sent out for testing and what this entails.
• Documentation is key. As with other employee relations issues, documentation is key when dealing with drug and alcohol issues at work. Employers should have signed acknowledgments from the employees who receive their drug and alcohol policy. Any issues should be documented appropriately.
• Be Consistent. Once you have a policy in place, enforce it equally and consistently. Nothing hamstrings management as much as inconsistency when enforcing policies and procedures. This damages credibility and leads to a lack of trust from employees that their employers have their best interest in mind. Having employees onsite who are under the influence of drugs and alcohol is not only bad for employee morale, it can also put others in physical danger especially in industrial, manufacturing or construction settings to name a few.

Additional Resources

CEA members may access our Drugs and Alcohol Testing Tool Kit for guidelines and considerations. For those who need to manage an accommodation request for an employee dealing with alcohol or drug addiction, refer to CEA’s Reasonable Accommodation Tool Kit. Find both tool kits on the Employer Tool Kits page.

More questions about drug and alcohol issues at work or reasonable accommodations? CEA members may call us at 800.399.5331, or email us at CEAinfo@employers.org.