Reasonable Cause
for Drug and Alcohol Testing, PLUS
How to Conduct Intelligent
Workplace Investigations
Presented by: Synergy Human Resources
PART I:
Reasonable Cause for
Drug and Alcohol Testing
@NorthRisk
Introduction
Reasonable cause drug testing is one of the most valuable
aids that a personnel department can have if it is properly
used. There are very few reasonable cause drug tests
being conducted. Perhaps too few.
@NorthRisk
Introduction
Many managers are afraid of drug and alcohol testing. It
is natural to try to avoid the issue. Managers also have
a responsibility to the company and other employees to
remove those persons from the workplace who are
suspected of being impaired.
@NorthRisk
Introduction
When a manager accuses an employee of being under the
influence of illegal drugs or alcohol, they are subjecting
themselves to accusations of unfairness. Most managers
are not professionally trained to diagnose drug or alcohol
impairment. By the time upper management looks into the
issue the employee no longer appears impaired. As a
result, the entire matter is one of differing stories and the
only result is bad feelings on all sides.
@NorthRisk
Introduction
Being impaired does not always mean using illegal
drugs or alcohol. Individuals can be impaired by
common prescription pain medications or muscle
relaxants. While this is not illegal use, company policy
should address the legitimate use of potentially
impairing drugs in the workplace.
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Introduction
There are many other factors to consider when deciding
if an employee is impaired. Is it possible that this
employee is diabetic, perhaps undiagnosed? Does this
employee have domestic or financial problems that are
causing tremendous stress? Many of these types of
problems will cause behavior that could be
misunderstood as drug or alcohol impairment.
@NorthRisk
Introduction
Because of the reasons outlined above, no accusation
of impairment should ever be made. The employee is
observed (preferably by two managers) and in private
they are told, as a result of these observations it is
believed that there may be a problem that effects their
ability to do their job. In cases like this, company policy
requires you to send an employee for a reasonable
cause drug and alcohol test and allow a doctor to
examine them.
@NorthRisk
Introduction
The issue being discussed is the safety of the employee
and their coworkers, not the tests or exam. Often
employees will try to change the issue. Your company
policy should include the fact that refusing to be tested
has the same consequence as a positive result. Be sure
to have the managers who witness the behavior
document the facts leading to the decision to have the
employee tested.
DOCUMENT ONLY THE FACTS!!! NEVER DIAGNOSE
ANY PHYSICAL CONDITION!!!
@NorthRisk
Recognizing the
Signs and Symptoms of
Drugs and Alcohol
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Signs and Symptoms
• Signs and symptoms of drugs and alcohol are used
in determining if an employee may be under the
influence of drugs and/or alcohol that would warrant
the employee to be tested.
• In most cases the employee’s behavior will be
inconsistent with their normal behavior due to the use
of a controlled substance or alcohol.
• Abnormal behavior draws attention to the employee
and, in most cases, establishes the opportunity for
the supervisor to take proactive measures to
determine drug/alcohol use.
@NorthRisk
Some Causes of Abnormal Behavior
 Stress
 Work?
 Home?
 Kids
 Family
 Financial matters
 Death in Family
 Divorce
 New Medications/Medical Problems
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Problems Caused in the Workplace
 Accidents/Injuries
 To himself/herself
 To other employees
 To members of the public
 Lack of Productivity
 Reduced or poor output
 Increased workload on others
 Theft
 Violence
 Increased liability to the Department
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Know Your Employees
• Know when they are stressed about something.
• Take time to listen.
• Always look for the warning signs that could indicate
something is wrong.
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Warning Signs
Change in behaviors
Sudden swift mood changes
Easily angered
Absent from work
Away from job site
Inability to explain reasons for doing something
Things turn up missing
Frequent accidents / injuries
Tired all the time
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Drugs in The Workplace
The National Institute of Drug Abuse (NIDA) has
identified the following drugs as the five drugs that are
more commonly found in the workplace. These are
referred to as the “NIDA 5”.
Alcohol, although not considered a drug, is also found in
the workplace and is often the reason testing is ordered.
@NorthRisk
Methamphetamines
Street names:
Crank, Crystal, Speed
Looks like:
White Powder, Pills, Rock resembling a block of paraffin
How taken:
Orally, injected, inhaled
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Methamphetamines
• Manufactured in bathtubs, barns, motels, cars
(driving down the road).
• Highly explosive and contain materials with a base of
ephedrine (what Sudafed is made of)
• Also contains many of these ingredients:
Red Phosphorous
Lighter Fluid
Drano
Acetone
Ether
Freon
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Methamphetamines
Signs and Symptoms:
• Edginess
• Nervous
• Restless
• Hard to sit still
• Twitching, jerking movements (loss of motor skills)
• Itching, scratching (they feel like bugs are crawling on
them)
• Act very paranoid – feel people are out to get them
and can make the individual very aggressive and
violent
• Sweat a lot – even when it’s cold
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Methamphetamines
Signs and Symptoms:
• Rapid, irrational and slurred speech
• Grinding teeth
• Runny nose
• Sometimes bloody nose for no reason
• Sudden weight loss (no desire to eat)
• Sickly looking
• Skin sores on the arms and face
• Rotten teeth and gums
• Poor personal hygiene
• Extreme / bizarre behavior
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Methamphetamines
Long-term effects of heavy use:
• Depression
• Permanent psychological problems
• Possible brain damage
• Disturbance of personality development
• Liver damage
• Fatal lung and kidney disorders
• Stroke or heart problems
• Death
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Cocaine
Street names:
Coke, Snow, Nose Candy, Flake, Blow, Big C, Lady,
White, and Snowbirds
Looks like:
White crystalline powder
How taken:
Inhaled, injected
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Cocaine
 Effects
 Dangers
 Produces brief but intense
feelings of euphoria
 Bleeding and damage to
nasal passages
 Stimulates the central
nervous system
 Paranoid psychosis,
hallucinations and mental
abnormalities
 Increases pulse, blood
pressure, body
temperature, and
respiratory rate
 Impaired driving ability
 Causes extreme excitability
and anxiety
 Death caused by heart or
respiratory failure
 Produces sleeplessness
and chronic fatigue
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Cocaine
 Addiction
 Withdrawal
 Cocaine users often
become psychologically
and physically dependent
on the drug after relatively
short periods of time
 In many cases, crack use
leads to virtual immediate
addiction
 Withdrawal symptoms
from cocaine are not as
physically apparent as
with many other drugs
 The most profound
symptom is an intense
craving for the drug once
use is discontinued
 If the craving is not
satisfied, the individual
may experience irritability,
depression and a loss of
energy
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Crack Cocaine
Street names:
Crack, Rock, Freebase
Looks like:
Crystalline rocks that look like soap
How taken:
Smoked
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Crack Cocaine
•
The high from the first hit is so intense that the user
will do almost anything to try and get that feeling
again.
•
Many times this becomes a mission and everything
else in life becomes secondary.
•
Will have no interest in doing any work, and may
become violent for any reason.
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Marijuana
Street names:
Pot, Reefer, Grass, Weed, Dope, Ganja, Mary Jane, or
Sinsemilla
Looks like:
Parsley, with stems and/or seeds; rolled into cigarettes or
cigars
How taken:
Smoked or eaten in brownies, stews and other goodies
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Marijuana
 Effects
 Dangers
 Euphoric feeling; increased
sense of well-being


 Lack of motivation
 Lowered inhibitions,
talkativeness

 Dry mouth and throat

 Increased appetite –
“munchies”
 Impaired coordination,
concentration and memory


 Increased heart rate
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Deteriorating performance at
work
“Burn out” involving muddled
thinking, acute frustration,
depression, and isolation
Impaired sexual development
and fertility
Damage to the lungs and
pulmonary system (one joint is
equal to 25 cigarettes)
Hallucinations and paranoia
Increased risk to safety and
health as a result of impaired
judgment and motor abilities
Marijuana
“I was at a concert next to some people who were
smoking some marijuana and I inhaled enough of
the smoke and that made me test positive.”
While it is possible to produce levels of marijuana in
a urine sample, cutoff levels were established in
order to disallow a claim of passive inhalation.
To exceed the cutoff levels established by the
United States Department of Health and Human
Services, the individual would have to use
marijuana in some manner (e.g., smoke, eat in
food, etc.)
Heroin (Opiates)
Street names:
Smack, Horse, Mud, Brown Sugar, Junk, Black tar, Big H
Looks like:
White to dark-brown powder or tar-like substance
How taken:
Injected, smoked, or inhaled
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Heroin (Opiates)
 The physical effects of
opiates depend on the
opiate used, the dose,
and how the drug is
taken. Effects may
include:
 Short-lived state of
euphoria, followed by
drowsiness
 Slowed heart rate,
breathing, and brain activity
 Depressed appetite, thirst,
reflexes and sexual desire
 Dangers
 AIDS, blood poisoning, and
hepatitis as the result of drug
infection and use of
unsterilized or “shared”
needles
 Death resulting from the
injection of impure heroin
 Death resulting from
unexpectedly high purity or
drug
 Convulsions, coma, or death
from overdose
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Heroin (Opiates)
 Addiction
 Withdrawal
 Opiates, particularly heroin,
have an unusually high
potential for abuse and
addiction. Heroin addiction
often leads to malnutrition,
infection, and unattended
injuries and diseases.
Addicts tend to continue
using the drug despite
damaging physical and
psychological
consequences
 Following long-time or
heavy use, withdrawal
symptoms generally
appear 4-8 hours after the
last dose. Symptoms
include chills, sweating,
runny nose, irritability,
insomnia, and tremors.
These symptoms are
usually worse 24-72 hours
after onset, and can last
from 7-10 days
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Heroin (Opiates)
“I had poppy seed muffins at breakfast before I went to
take the drug test me I had failed the test.”
Much like marijuana, eating poppy seed muffins may
produce a positive test in the urine sample. However,
the cutoff levels are set at a level designed to eliminate
this claim.
An individual would not be able to consume enough
muffins to exceed the cutoff levels established by the
United States Department of Health and Human
Services.
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Alcohol
Prolonged, heavy use can lead to:
 Isolation from family and friends
 Difficulty handling daily problems
 Learning and memory problems (users may
remember less than those who don’t use
alcohol)
 Depression
 “Blackouts” – users may forget whole blocks of
time (and what they did or said)
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Alcohol
One drink can affect the:
 Body
 Mind

Alcohol enters the blood
stream almost instantly

It travels to the brain and all
the body organs


In small doses, it can impair
judgment, leading to risk
choices such as driving under
the influence

In larger doses, users may feel
confused and moody. Strong
feelings such as anger,
jealousy and depression can
quickly lead to loss of selfcontrol

Increasing the dose even more
can cause alcohol poisoning,
unconsciousness, coma, even
death
It depresses the central
nervous system and impairs

thinking and reflexes

balance and coordination

vision
@NorthRisk
PCP
Street names:
Angel dust, ozone, whack, rocket fuel, hog, love boat
Looks like:
Liquid, white crystalline powder, pills, capsules
How taken:
Orally, injected, smoked (sprayed on joints or cigarettes)
@NorthRisk
PCP
The effects of PCP are:
 Altered states of consciousness
 Disorientation, confusion, and memory loss
 Highly unpredictable, and bizarre or violent behavior
 Extreme agitation
 Impaired driving ability, and
 Increased tolerance for pain
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PCP
Physical dependence on PCP has been documented
and may be accompanied by memory loss, violence,
weight loss, and paranoia. Symptoms of withdrawal
include headaches, intense craving for the drug,
increased need for sleep, and “flashbacks” for a period
of years.
Even short-term use can be dangerous, causing mental
changes resembling schizophrenia, severe depression,
loss of learning abilities, and violent and other
“intoxicated” behaviors resulting in bodily harm or death.
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Knowing the Signs
The indicators listed below are "warning signs" of drug
and/or alcohol abuse and may be observed by
supervisors:
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Knowing the Signs
Moods
• Depressed
• Anxious
• Irritable
• Suspicious
• Complains about others
• Emotional unsteadiness (e.g., outbursts of crying)
• Mood changes after lunch or break
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Knowing the Signs
Actions
• Withdrawn or improperly talkative
• Spends excessive amount of time on the telephone
• Argumentative
• Has exaggerated sense of self-importance
• Displays violent behavior
• Avoids talking with supervisor regarding work issues
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Knowing the Signs
Absenteeism
• Acceleration of absenteeism and tardiness,
especially Mondays, Friday, before and after holidays
• Frequent unreported absences, later explained as
"emergencies"
• Unusually high incidence of colds, flus, upset
stomach, headaches
• Frequent use of unscheduled vacation time
• Leaving work area more than necessary (e.g.,
frequent trips to water fountain and bathroom)
• Unexplained disappearances from the job with
difficulty in locating employee
• Requesting to leave work early for various reasons
Knowing the Signs
Accidents
• Taking of needless risks
• Disregard for safety of others
• Higher than average accident rate on and off the job
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Knowing the Signs
Work Patterns
• Inconsistency in quality of work
• High and low periods of productivity
• Poor judgment/more mistakes than usual and general
carelessness
• Lapses in concentration
• Difficulty in recalling instructions
• Difficulty in remembering own mistakes
• Using more time to complete work/missing deadlines
• Increased difficulty in handling complex situations
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Knowing the Signs
Relationship to Others on the Job
• Overreaction to real or imagined criticism (paranoid)
• Avoiding and withdrawing from peers
• Complaints from co-workers
• Borrowing money from fellow employees
• Persistent job transfer requests
• Complaints of problems at home such as separation,
divorce and child discipline problems
@NorthRisk
PART II:
Conducting Intelligent
Workplace Investigations
@NorthRisk
Introduction
Several federal and state statutes, common
law, and company HR policies impose on
employers an obligation to investigate
workplace issues. This may include:
• Theft - embezzlement
• Discrimination
• Illegal drug and alcohol use
• Accidents
• Violence
• Ethics violation
• Harassment
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Introduction
Public policy behind such laws appears to be an
increasing concern regarding accidents and violence in
the workplace. In addition, illegal drug and alcohol use
by employees on the job creates high risk situations.
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Introduction
Anti-discrimination laws prohibit, among other
things, harassment and discrimination based
on an individual’s:
• Race
• National Origin
• Color
• Age
• Religion
• Disability
• Gender
• Sexual Preference
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Introduction
Negligence, gross negligence and misconduct also take
other forms in the event of performance of one’s duties
where there is a risk of harm to self or others.
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It is not enough to merely investigate. If
allegations of wrongdoing or high risk actions are
substantiated during the investigation, employers
are also required to take prompt action to eliminate
misconduct or risk to avoid liability.
To quote a recent decision from the U.S. Court of
Appeals, once employers know of unlawful risk or
conduct, they have a “duty to take reasonable
steps to eliminate it.”
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Determining the steps to follow during the course of an
investigation, and when to conduct them, is not always
easy.
From a practical standpoint, the safest and easiest course
is for employers to treat all issues seriously, and to be
consistent in application of any results with corrective
actions.
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Investigations should occur, as you may imagine, for a
variety of reasons. Situations may arise regarding:
workplace accidents, violence threats, substance abuse
issues, high risk (dangerous) behavior and, of course,
harassment.
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How to Proceed
Investigations should begin immediately upon receiving or
hearing about an issue or complaint. Quick action helps to
avoid any escalation of a problem or increasing danger.
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Employees’ and witnesses’ memories tend to be more
accurate when they are questioned soon after the
occurrence of an incident.
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When talking with the injured, the complainant, the
accused, and witnesses, gleaning all the information is
important.
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At the outset of each interview, which should be done by
two employee representatives, employers should explain to
the person being interviewed that absolute confidentiality
will be impossible, but that all efforts will be used to limit the
scope and content of any information shared with others
only on a need-to-know basis.
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To avoid liability for false imprisonment claims, employers
should always interview employees during regular
business hours, in familiar surroundings.
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It is inappropriate to have an employee be represented by
an attorney in an internal investigation. An employee has
no legal right.
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Employers should request specific details with respect to:
• The place of the event
• The time of the event
• Witnesses who were present, and
• The number of times the conduct occurred
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If inflammatory speech is involved, employers should
find out exactly what was said and with whom, if
anyone, the events were relayed to, and when.
Remember, you are gathering the facts. What led up to
incident(s) is critical.
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Be sensitive to the fact that the information to be
communicated can be embarrassing during the interview,
so keep the number of individuals present in an interview
limited to only the necessary parties.
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Take specific notes of what is said.
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Be sure that the people chosen to interview the parties and
witnesses do not intimidate the interviewees. If the
atmosphere is intimidating or uncomfortable, the simple
result is that the interviewee may not provide much
information.
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As an example, two females interviewing a male victim of
sexual harassment are not likely to get fully descriptive
details of events, particularly if either of them know the
accused.
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Where possible, avoid using names of the parties involved,
particularly when interviewing witnesses.
Ask open-ended questions.
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Similarly, instruct those whom are interviewed not to
discuss the contents of the conversations they have had
regarding the charges or people involved in the
allegations. Explain that this request is designed to
protect all of the parties involved, as well as to ensure the
integrity of the investigation.
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If there is an accused, tell the accused that, as an
employer, the company has a legal obligation to investigate
all claims, especially those of harassment and
discrimination.
Let the accused know, however, that all judgments will be
reserved until the conclusion of the investigation.
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At the same time, counsel the accused employee that he or
she may not retaliate against the person claiming the
unwanted conduct, harassment, or discrimination. Explain
that the law forbids anyone from engaging in such
retaliation.
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Caution must also be taken to limit potential exposure to
claims brought by the employee being investigated.
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In a recent court decision, an employer terminated a
female employee after a private investigator followed the
employee to a bar and confirmed she consumed several
alcoholic drinks before driving the company van, in
violation of company policy.
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The court held that the employer may have violated the
employee’s rights under the Americans with Disabilities
Act when it gave her a choice of termination or attending a
treatment program, because the employer improperly
perceived the employee to be an alcoholic.
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Another problem with the employer’s action in this case
was the fact that it had not given this same choice to male
employees in similar circumstances.
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Conduct the investigation as quickly and efficiently as
possible. The longer an investigation carries on, the
greater the disruption to the workplace and the greater the
likelihood that mistakes will occur that can be costly in
terms of legal liability.
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Be very careful to understand whether this conduct
being complained of involved co-worker harassment
or whether it was a supervisor harassment.
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If it was a co-worker harassment situation, the plaintiff must
prove the employer knew or should have known of the
harassment and failed to take prompt corrective action.
Thus, the employee would have the burden of proof.
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In cases of supervisor harassment, it is the employer who
bears the burden of proof.
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Regardless of whether the alleged harasser is a supervisor
or a co-worker, the best way to avoid liability is to take
prompt and effective remedial action which legally requires
an adequate investigation of any complaints.
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Dos and Don’ts
When Receiving a Complaint
The individual who receives a complaint, whether it be the
supervisor or an HR professional, should generally
observe the following dos and don’ts:
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DO When Receiving a Complaint
• Be open and receptive to a complaint. The company
wants to know (or should want to know) of any
inappropriate behavior in the workplace
• Take the complaint seriously, show concern, do not
make jokes
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DO When Receiving a Complaint
• Be non-judgmental in terms of whether you believe
the complainant or not. Your first impression may be
incorrect.
• Follow company procedures. Generally, this means
informing human resources.
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DO When Receiving a Complaint
• Respond promptly. Don’t let it drag out.
• Take immediate steps to correct serious
risks, such as threats of violence or
allegations of violence, even if you do not
have time to first complete an investigation.
Carefully consider separating the “victim”
from the “harasser” pending the
investigation.
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DO NOT When Receiving a Complaint
Do not act as gatekeeper. Pass all relevant information
on to human resources, even if the victim asks you not to
do anything about his or her complaint.
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DO NOT When Receiving a Complaint
When conducting witness interviews, do not indicate
whether you believe or disbelieve an employee’s account.
No decision should be made before a complete
investigation has been conducted and you have gathered
all the facts.
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DO NOT When Receiving a Complaint
Do not promise a victim or witness that they
will remain anonymous, or that the interview
will be kept confidential. It is usually
appropriate to tell the victim or witness that
what is said in the interviews will be kept as
confidential as is reasonably possible, given
the circumstances and given the company’s
legal obligation to respond to the complaint.
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DO NOT When Receiving a Complaint
Do not make any promises about how the complaint will
affect anyone’s job, except to assure the victim that no
retaliation will be made for a complaint made in good
faith. Often, employees accused of harassment will want
to know immediately if their job is in jeopardy. Although it
is generally inappropriate to assure an accused harasser
that his or her job is safe, it is generally appropriate to
assure him or her that no action will be taken until a
thorough investigation has been conducted, and they
have had an opportunity to tell their side of the story.
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DO NOT When Receiving a Complaint
Do not retaliate against the complainant, and instruct the
accused harasser not to do so.
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Interviewer Open-ended Questions
• Describe everything that happened in detail (Every
incident that occurred, exactly what this witness heard
or saw).
• What was the context of the behavior, as in where were
they, what were they doing, why were they there?
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Interviewer Open-ended Questions
• When did the incident occur?
• Who else was present, and what, if anything, did they
see or hear?
• What, if anything, did you do about the incident? (for
example, did the witness tell the harasser to stop?)
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Interviewer Open-ended Questions
• What, if anything, did you tell others about the incident?
• Have you heard anyone else discuss the incident, and,
if so, what did you hear?
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Reaching a Conclusion
Normally, this will require the investigator to decide whether
the actions did or did not occur, and whether the conduct
violates a company policy. Even if it didn’t contradict a
specific rule, was the conduct inappropriate or risky?
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Reaching a Conclusion
There is no clear legal standard for making personnel
decisions based on a workplace investigation, such as
beyond a reasonable doubt or preponderance of the
evidence. It is reasonable to adjust the proof required
and/or the actions taken based on the seriousness of the
allegation.
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Reaching a Conclusion
The results of an investigation may turn solely on the
credibility of witnesses, particularly in a case where the
only witnesses are the complainant and the alleged
harasser.
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Reaching a Conclusion
In making such determinations, the investigator
should be able to explain why one witness was
more credible (e.g. one witness had a greater
motive to lie, or a reputation for truthfulness,
there were inconsistencies in witnesses’
stories, or one witness’s body language was
defensive and/or inappropriate to the context,
as in not acting surprised upon hearing the
allegation).
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Reaching a Conclusion
It is appropriate to instruct each person interviewed that
this is an important process and that the witness needs to
be completely truthful.
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Reaching a Conclusion
The investigator must keep the process confidential to the
greatest extent possible. The investigator should discuss
the matter only on a strict, need-to-know basis, and should
not engage in gossip.
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Reaching a Conclusion
Witnesses who are interviewed should be told that they are
not to discuss confidential matters with anyone at work or
outside work.
Breaches of confidentiality may subject the company or the
witness to claims of invasion of privacy or defamation by
the complainant and/or the harasser.
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Reaching a Conclusion
In addition, breaches of confidentiality may
subject employees to retaliatory actions by
others.
Finally, if the story gets out before interviews
are conducted, employees who have not yet
been interviewed may, intentionally or
unintentionally, alter their version of the facts
based on what they have learned from others.
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Reaching a Conclusion
Documentation of the investigation (crime witness notes,
etc.) should not be placed in the harasser’s or victim’s
personnel file.
Investigation materials may contain confidential witness
statements that would be inappropriate to provide to the
perpetrator or victim.
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What If…
Although an investigator undertakes an inquiry with the
expectation or hope that “the truth” will be uncovered,
often the waters are murkier after the investigation than
before.
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What If…
Investigators are reluctant to make a firm decision where
there are no independent witnesses and the alleged
harasser and victim have diametrically opposed versions of
the event (a he-said/she-said case).
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What If…
If the conduct cannot be confirmed or disproved, that
should be the investigator’s conclusion, and a common
approach is to reinstruct all parties in the company’s
discrimination and harassment policies, complaint
procedure, and risk avoidance approach.
@NorthRisk
What If…
The employer should also conduct additional training of the
individuals and/or the workforce on diversity and
harassment issues, accident prevention, and risk
assessment processes, and consider or invite any request
to be transferred out of the department in which the events
allegedly occurred.
@NorthRisk
Contact Information
Mike Bourgon
651-270-2281
mike@synhr.com
Kevin Ryan
612-280-5484
kevin@synhr.com
www.SynHR.com
1-888-603-7872
Michael Conroy
651-325-5395
mconroy@synhr.com
@NorthRisk