By Yvette Farnsworth Baker

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Legal Standards – An Employer’s Guide

Knowing signs of drug or alcohol impairment can be very important in implementing an effective drug- and alcohol- free workplace. And as laws legalizing marijuana continue to pass across the country, this will only increase in importance. While identifying signs of impairment can seem challenging, there are legal standards to guide employers.

Some jurisdictions forbid random or periodic drug testing, and permit drug or alcohol testing only if there are articulable suspicions to believe an employee is impaired on the job. San Francisco, California, for example, prohibits random or company-wide drug testing. Instead, the law allows testing only if an employer has reasonable grounds to believe the employee’s faculties are impaired on the job.

Additionally, even more jurisdictions are requiring signs of impairment before permitting an employer to discipline an employee for marijuana use, in states where medical or recreational marijuana is legal. For example, the state of Arizona permits medical marijuana use. The law forbids employers from discriminating against medical marijuana card-holders in hiring, firing, and terms of employment if they test positive for marijuana. Proof of working under the influence of marijuana, or using marijuana at work, is required before discipline can be imposed.

And of course, in any jurisdiction, employers should always be watchful for signs of impairment. Even where random or company-wide testing is permitted, employers are wise to test employees who show signs of impairment, if their workplace policy permits reasonable suspicion testing.

Articulable Suspicion

Legal standards for recognizing drug or alcohol impairment on the job must always start with an articulable suspicion. An articulable suspicion is one based on specific facts that can be listed, as opposed to a hunch or a feeling that cannot be described in more detail. So what are some articulable observations that can infer drug or alcohol impairment?

The statutes of some jurisdictions list symptoms that can be associated with drug or alcohol impairment. The state of Illinois’ medical marijuana law, for example, lists the following signs to guide identification of impairment: symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to property, disruption of a production process, or carelessness that results in any injury.

Arizona’s law includes many of the same signs as Illinois, and additionally lists: walking, standing, actions, movement, appearance, clothing, and odor. Arkansas includes a significant deterioration in work performance as a sign. Mississippi lists absenteeism or tardiness as symptoms of substance use. West Virginia’s Public Works testing law includes mood swings. Ohio’s guidelines list dilated pupils as a sign of impairment.

DUI – Tried and True Standards

As well, it is useful to look at practices surrounding DUI. Police officers are constantly required to explain what observations led them to believe an individual was under the influence of drugs or alcohol while driving. In one published case, Washington v. Rios-Gonzales, the arresting officer used the following symptoms (among others) to justify his arrest for DUI: the driver was unable to remain still; his fingers were fidgeting; his speech was extremely fast; in response to questions and throughout the contact, the driver went off on tangents; his face was flushed; his eyes were bloodshot and watery.

Forming the Picture of Impairment

With almost every factor, it is imperative to look at the totality of the circumstances, rather than focusing on one symptom alone. While any one sign can be explained away, when several signs are present, or have been present for more than one day, the suspicion of impairment is much more reasonable. As well, no list is exhaustive. While these are examples of signs, there are others that can also be reasonably used to justify a suspicion of impairment. Above all, employers should take care to articulate the signs they observe. Documenting observations as soon as possible is an excellent practice, in order to preserve details before memory fades.

Protecting the safety and integrity of the workplace is everyone’s goal, and recognizing signs of impairment is key to accomplishing that goal.

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