What is Reasonable Suspicion in employee impairment testing?
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All About Reasonable Suspicion in Employee Drug and Impairment Testing
The following is not legal advice. Please consult with an attorney licensed to practice in your state.
Introduction
When an employee is suspected of being under the influence of drugs at work, it can be difficult to know what you can do. A lack of clarity around reasonable suspicion and employee drug testing laws, as well as variations in employment law between states, has led to some employers making mistakes that result in costly legal action for them. However, with a little knowledge about these issues and how to deal with them appropriately, you can avoid getting yourself into trouble when dealing with suspected impaired employees.
Please consider this article a starting place! This is a complex issue that requires training and careful attention to comply legally.
What is reasonable suspicion?
Reasonable suspicion is a legal term that governs what action can be taken by an employer if they suspect that an employee is impaired at work. It is a lower standard than probable cause, which is what law enforcement uses, and allows employers to conduct employee drug testing based on a reasonable belief that an employee is under the influence of drugs or alcohol.
Reasonable suspicion must be established by objective facts, not just subjective beliefs. For example, if an employer observes an employee staggering, slurring their words, and appearing intoxicated at work, this would provide reasonable suspicion for conducting a drug test.
Employers must be very careful to document the rationale for their reasonable suspicion. Employees may feel singled out if they’re being drug tested and other employees aren’t. This can lead to legal action against the employer and the loss of a valuable employee.
When should you drug test an employee?
There are several situations in which reasonable suspicion drug testing is appropriate:
When you suspect an employee is impaired at work.
When an employee has a medical condition or is on medication that could affect their job performance.
When an employee has recently been involved in an accident or near miss at work and you want to determine if there's anything that could have contributed to it. If the employee was involved in a car crash, for example, it would be reasonable for HR to request a drug test so they can rule out impairment as one of the causes of the crash.
When an employee is behaving unusually and seems like they're under the influence of drugs or alcohol (but not necessarily just feeling drowsy).
Certain types of employees are required to be tested given the nature of their position. These include employees in “law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of public trust” are required to undergo drug testing. This involves safety-sensitive industries like transportation, defense, hospitals, schools and universities, and any federal, state and county applicants.”
You can learn more about these requirements at the SAMHSA website.
What are the reasonable suspicion signs of drug use?
Reasonable suspicion signs of drug use may be different for every state, so be sure to chat with your attorney about what’s legal, but they typically include:
Physical signs: Visible changes in appearance or demeanor that indicate the user is under the influence of drugs. These can include:
Dilated or constricted pupils
Bloodshot eyes or glassy eyes
Rapid unexplained weight loss/gain
Unusual odor on the breath or body (ex. cannabis smoke or alcohol)
Flush, pale or sweaty skin
Shaking, body tremors and twitching
Frequent sniffing or runny nose
Swaying or staggering
Needle marks
Behavioral signs: A change in behavior that indicates a deviation from normal for the individual that could indicate drug or alcohol use. These can include:
Loss of focus, concentration, or motivation
Hostility or irritability
Decrease in work efficiency
Increase in workplace accidents or near misses
Unusually long breaks away from work stations
Falling asleep at work (or sleeping at other times when there is no reason for it)
Slurred, delayed, or mumbled speech
Results from a drug test: Positive results may indicate recent use—but they also might not be conclusive because some drugs remain detectable in someone's system longer than others (e.g., cocaine versus marijuana).
How do you document reasonable suspicion?
Reasonable suspicion is a serious matter that should be documented. The documentation of reasonable suspicion can be done in many forms including a memo or email, though it is recommended to keep the document with your employee’s personnel file. It is also recommended to standardize the reporting form, for example, using the one linked below, to ensure fair treatment amongst employees.
Documentation should include the date and time of the event, as well as the name of the person who conducted the evaluation or noticed the behavior. It should also include details on why you believe there was reasonable suspicion to test this employee and what actions were taken to confirm or refute that suspicion. Once results of a drug test are available, they should also be included in this memo or report.
How to legally drug or impairment test an employee
As of 2024, there are no laws in the US that prevent an employer from conducting impairment testing for reasonable suspicion, and in fact, many Gaize customers do this today. This can be either instead of, or in addition to traditional chemical drug testing. Impairment testing is a great first line of defense that can help to confirm or deny reasonable suspicion, and inform the appropriate follow up chemical drug test.
There are several circumstances in which an employer can legally drug test an employee without cause. Generally speaking, this includes testing during job applications and for employees in positions that mandate testing by the US Federal Government. Most states also allow for random drug testing of employees, though some do not. Make sure you check with your attorney to find out about your state.
If an employer wants to drug test and existing employee and they are not legally required to be tested, the employer must follow strict guidelines to remain legal. In order to legally drug test an employee, you must have a reasonable suspicion that they are under the influence and working in a safety-sensitive position. This can be defined as any job where there is a risk of injury or danger that could result if the worker cannot perform their duties safely. Some examples include pilots and truck drivers but not office staff or sales associates (unless they perform a safety-sensitive role).
The employer must have reasonable suspicion that the employee is using drugs
The employee should be a safety-sensitive position or job duty (such as piloting a plane)
Employees have to sign off on consent forms before being tested for drugs at work or randomly and these must be administered consistently according to company policy
What mistakes are commonly made in reasonable suspicion and employee impairment and drug testing?
Impairment and drug testing are an important aspects of ensuring workplace safety. When you suspect an employee may be impaired at work, it is important to be aware of the legalities associated with drug testing them. Here are some of the most common mistakes that employers make in impairment and drug testing:
Not having or not following a written, formal company impairment and drug testing policy. This is the most important single step that each company should take to ensure that they are maintaining a safe and impairment free work environment. Once you have a policy, you need to also follow it. There can be major legal challenges if a company policy is not administered consistently.
Not testing when you have reasonable suspicion of impairment. It can be tempting to simply send an employee home for the day if they show up drunk or high. However, it’s vital to document the incident and follow what your company policy says the proper steps are. If you don’t it can lead to legal troubles down the road, like when you actually do have to impairment or drug test someone and they claim discrimination.
Not treating all employees the same in drug testing. Favoritism and discrimination are a major legal problems for employers. You have to be fair in how you create your testing policy, and in actually executing on it.
Applying Department of Transportation (DOT) rules to all employees. The DOT regulates certain types of employees, and you should only regulate your DOT covered employees by those rules. Applying it to jobs outside of DOT purview is not allowed.
Conclusion
If an employer suspects that an employee is impaired on the job, they can be legally required to perform a drug or impairment test. If the test comes back positive, the employer can then take disciplinary action against the employee. This can include termination or suspension of employment, but it should be clearly documented in your employee manual and each employee should sign off on the policy when they accept employment.
Impairment testing using Gaize is the fastest and cheapest way to discover workers who are drunk or high on the job. With no per-test fees, and results in just 6 minutes, you can operate a safer work environment with on-demand impairment testing.
