POSSIBLE REASONABLE SUSPICION WALKED OFF THE JOB
(Summer 2018) Real Life Incidents: Working Partners® Consortium members receive phone support and consultation about drug-free workplace (DFWP) issues — a benefit we term “troubleshooting.” Here is a brief description of a troubleshoot call and our response/suggestions.
Working Partners® recently received a call from a drug-free workplace (DFWP) Program Administrator (PA), whose multi-state company is a member of the Working Partners® Consortium. The Ohio-based PA had received a call from a supervisor, working in another state, about a situation that was occurring with an employee outside of Ohio.
The supervisor reported that an employee was sent to retrieve material from the warehouse for an urgent job but had not returned after a considerable amount of time. When the supervisor went to look for the employee, he found the employee unresponsive in his car with what looked like a burnt test tube in his lap. The supervisor said it took a while for the employee to respond to knocks on the car window. When questioned about what was in his lap, the employee knocked the tube off his lap and it landed between the seat and center console. The employee got out of his car to talk with the supervisor, though it took about 10 minutes before the employee was “able to speak coherent sentences.”
The employee was escorted to the supervisor’s office and informed that a drug test might be requested. The employee denied using any substances and indicated he would just leave for the day. The employee was asked to wait while the supervisor called the Program Administrator. The supervisor first completed a reasonable suspicion checklist on the employee, then called the PA for direction.
After the PA reviewed the details of the situation with the supervisor, he called Working Partners® to discuss the situation and brainstorm options. When we asked if the employee was still on the premises, the PA was not sure, so he called the supervisor back and confirmed the employee had, indeed, left. Attempts were made by another supervisor to stop the employee. However, the employee refused to come back in and left the premises.
Based on the completed reasonable suspicion checklist, both the supervisor and the PA had safety concerns about the employee driving. Before calling Working Partners® back to determine next steps, they opted to contact law enforcement — given the employee may be under the influence and a danger to himself and the public. This situation occurred in a small town, and they felt confident law enforcement would respond.
After that immediate safety concern was addressed, the PA and supervisor conferenced Working Partners® into their call to discuss options for handling this situation.
Given the fact that administering a reasonable suspicion test was now out of the question, the PA and his supervisor needed to decide how to handle the employee’s decision to leave the premises after he was told he might be tested.
First, they needed to determine if there were any drug-free workplace violations in play when the employee left. The PA said he felt comfortable viewing the employee’s actions as a refusal to test since the employee was told multiple times not to leave. We reviewed their DFWP policy for guidance following a refusal to test, and it indicated the company could terminate the employee or make a mandatory referral for an alcohol/drug assessment. They also reviewed other HR policies at play, here, particularly related to insubordination and walking off the job during the workday.
The PA decided that, despite all the HR issues at play, he would make a mandatory referral if and when the employee returned to work. In preparation, we walked through steps for making that referral, including reviewing and signing an Assistance Agreement and contacting their Employee Assistance Program (EAP) to set an appointment for the assessment.
We also encouraged the PA to contact his corporate attorney for verification of this plan before moving forward.
After walking through the urgent employee situation with the PA and supervisor, we suggested they also look at a few administrative issues for the future.
- First, with locations across the nation and only one PA for their entire DFWP program, it’s imperative they maintain regular supervisor training. (And it should be more rigorous than typical, as these out-of-state supervisors have more responsibilities than those who are in the same location as their PA). This supervisor was well trained. He had already started his reasonable suspicion checklist and had thought through logistics of transporting for the drug test, if that were to happen.
- It’s also important that this company’s DFWP policy and operations be in-line with the laws and nuances of each state in which they’re working. Thankfully, this company had previously worked with Working Partners® and their legal team to create state-specific policies and reference guides to help direct these types of situations.
If you have operations in multiple states or are not confident your state laws are incorporated into your drug-free workplace operations, reach out to your attorney or the Working Partners® team for assistance.
(Epilogue: The PA called Working Partners® a week after this call and shared the employee called the company several days after walking off the job and quit. The employee stated he was dealing with some personal issues and needed time to “work some things out.” Though the employee was not eligible for EAP benefits if he was no longer with the company, the PA offered him a list of helping resources in his locale.)
As a member of Working Partners® Consortium, don’t forget your access to this troubleshooting service. Be safe, not sorry!
Call Working Partners® Consortium at (614) 337-8200 or 866-354-3397.
DISCLAIMER: This publication is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the publication are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.