What to do if You Suspect an Employee is Under the Influence

CEA’s subject matter experts receive dozens of calls a day regarding tricky HR questions. Here are two scenarios that come up often:

Question: I suspect my employee is showing up to work under the influence because they smell like marijuana. Can I randomly drug test my employees at work? 

We also sometimes get: I suspect my employee is under the influence of alcohol at work because I smell it on their breath, and their eyes are glassy. Can I randomly test my employees at work?   

Answer: For the majority of employers, the answer is no. Due to California’s privacy laws, very few employers are permitted to establish random drug testing programs (exceptions do exist for some in the airline industry, mining, truck drivers, etc.) However, employers may test an employee when they have “reasonable suspicion” that they are currently under the influence of drugs or alcohol. We recommend basing this assessment on more than one objective factor or behavior. CEA members can access a helpful Reasonable Suspicion Checklist for employers to use on our HR Forms page.

Who Can Be Tested & When?

California is one of a few states that guarantees an individual’s right to privacy in its Constitution. There are four circumstances when you may be permitted to conduct drug/alcohol testing in California, including:

• Pre-employment screening
• Reasonable suspicion testing
• Post-accident testing
• Random testing (Very limited! E.g., roles critical to public safety or the protection of life, property, or national security)

Unless you have Department of Transportation (DOT) regulated employees, or are otherwise required to drug test under state, federal, or local law, most employers are not required to conduct drug or alcohol testing.

When it’s a matter of employer discretion, drug testing should be outlined in your policies. For example, an employer may choose to establish a policy of testing upon “reasonable suspicion” that someone is under the influence, but choose not to drug screen job applicants. CEA Members can learn more about the different drug testing programs in our Drug and Alcohol Testing Toolkit.

How Do We Establish Reasonable Suspicion?

“Reasonable suspicion” has been defined by courts as something less than probable cause but more than a mere suspicion. It requires further investigation and must be based on objective facts, observations, and rational inferences drawn from those facts/observations. Examples may include a combination of factors, such as the smell of alcohol or cannabis on breath, lapses in performance, inability to appropriately respond to questions, other physical symptoms, etc.

In general, it is usually recommended that the supervisor/manager observe more than one symptom or behavior, and that another person confirms the same or similar observations, prior to reasonable suspicion testing. Employers should also consider if the symptoms or behavior could be attributable to things other than drugs or alcohol.

CEA Members can use our Reasonable Suspicion Checklist to help make this determination.

Employers should also be aware that some localities may have stricter testing standards than the State. For example, the City of San Francisco has additional requirements to drug test employees.

What About Special Rules in California for Marijuana?

California’s Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against an employee or job applicant based on an employee’s cannabis (marijuana) use that is off the job and away from the workplace. While employers can enforce a zero-tolerance policy while their employee is working or at work, it is discriminatory to not hire or not promote someone because you learned they use cannabis in their personal time. Again, there are limited exceptions to this rule for the building and construction trades, certain federal contractors, and others (e.g., DOT drivers).

California’s cannabis-use protections also impact how California employers may test for cannabis. Employers are prohibited from using a test that identifies non-psychoactive cannabis metabolites (which could indicate past usage and/or off-the-job usage). Be sure to check for compliance with your drug screening provider.

Best Practices for Our Scenarios Above

If your employee shows up to work and smells like marijuana, or their breath smells like alcohol, we would caution you to consider if there are additional objective factors indicating the person may be under the influence.

We suggest you pull the employee aside privately and ask them some work-related questions so you can observe whether they are responding in a coherent manner, exhibiting physical signs of intoxication, etc. Best practice is to have two or more managers make independent observations, compare their conclusions, and then decide whether to send an employee for drug testing.

Are you dealing with a tricky HR scenario? CEA members can call us at 800.399.5331, email us at CEAinfo@employers.org, or reach out to us via Live Chat!