If you suspect an employee of being a substance abuser, ask him or her to take a drug test. "I tell clients who can't demonstrate that an employee appeared to be under the influence of drugs, but where they had a suspicion, to just go up to the employee and tell them, 'I suspect you are using or diverting drugs and we are going to be watching you very carefully.' Sometimes that solves the problem, and sometimes the employee leaves and goes somewhere else," Malfitano says.
Avoid making decisions about an employee without proof, such as an admission or a positive drug test. "It is one thing to go up to an employee and say, 'We suspect you and we are watching you.' That is OK. But to merely suspect an employee is using drugs or alcohol and fire them as a result, that could be a significant source of liability," Malfitano says.
Keep in mind that substance abusers who are in recovery are usually protected by the Americans with Disabilities Act, unless they are "currently users." The federal government defines "current use" of illegal drugs to be within the past two years.
The best way to confront a potential substance abuser is in the hiring process, but that is still tricky. "You can't be negligent in hiring, which means you have to ask as many questions as you are legally permitted to ask," Malfitano says. "But under the ADA, the only question you can ask along these lines is, 'Have you used illegal drugs in the past two years?' because that is what is considered current use."
You can ask applicants if they've ever been fired, and if so why. If it's for substance abuse, they might admit it. You can do criminal background checks and drug tests. "You don't have to ask illegal questions to avoid being negligent," Malfitano says. "If somebody was convicted of possession of marijuana 10 years ago when they were in high school or college, you probably don't have a legal basis for not hiring them, and nobody is going to say you were negligent in following the law if you hired that person."