Handling Employees Under the Influence


How should I handle an employee who reported to work obviously under the influence of drugs or alcohol? What can/can't I say?


Prior to taking any administrative action against your employee, SLG strongly recommends you consult with legal counsel as each case will be different and require separate analysis. The first thing to do in this situation is to relieve the employee from his duties as the employer has a duty to provide a safe working environment for all employees and the general public. As an employer, you are not required to tolerate an employee attempting to function in such a condition. Also, your "zero tolerance" drug and alcohol policy should prohibit employees from reporting to work under the influence of controlled substances (e.g., alcohol, marijuana, methamphetamine, heroin, cocaine, etc.) as well as prescription drugs, which are also often abused. You do not need to say anything specific at first, other than to tell the employee that he appears to be unable to perform his job functions and is being relieved of duty pending further investigation into his condition. Be sure to look for objective indications that the employee is under the influence as the employer will need to be able to articulate a reasonable suspicion that the employee is under the influence should a drug test be necessary.

Once the employee has been relieved of duty, escort the employee to a private area or room in the workplace for further questioning. Because there may be a legitimate reason for the employee's behavior that is health-related and a privacy concern to the employee, it is best to deal with these situations in private. That said, feel free to ask the employee if he is under the influence of drugs. Surprisingly, employees sometimes admit to this. If the employee admits being under the influence, termination of employment would probably be appropriate absent some special circumstances - for example, perhaps the employee was legitimately taking a prescription drug that produced unexpected adverse reactions through no fault of or abuse by the employee. In the case where the employee admits using an unlawful drug, like marijuana, the employee should be subject to immediate termination.

It is important to look for objective indications that the employee is under the influence because under California privacy laws, an employer should not send a current employee for a drug test unless the employer has a reasonable suspicion the employee is under the influence. If, for example, you smell alcohol on the employee's breath, the employee slurs his speech, you recognize the aroma of marijuana, the employee's eyes are bloodshot, and/or the employee is stumbling into the walls or cannot stand up, you probably have reasonable suspicion to submit the employee to a drug test. If the employee then submits to a drug test and tests positive for drugs or alcohol, you have grounds to terminate the employee. If you have reasonable suspicion and the employee refuses to submit to a test, you could also terminate the employee. SLG recommends the implementation of a written reasonable suspicion policy in advance to educate employees and to obtain their written consent to be tested in addition to their consent at the time of the testing. Employees should be notified in advance of what substances will be tested for as well as the tolerable level of each.

Under Labor Code §1025, private employers with 25 or more employees shall reasonably accommodate employees who voluntarily enter drug/alcohol rehabilitation programs provided that the rehabilitation does not provide an undue hardship for the employer. However, there is no affirmative duty on the employer to allow an employee to enroll in or to attend a rehabilitation program. The employer also may terminate or refuse to hire an employee if the employee cannot perform his job duties because of current drug/alcohol use or poses a threat to the health or safety of himself or others. However, employers covered by FMLA/CFRA may be required to give time off to employees undergoing treatment.


Counsel to Management: Although certain scenarios might be straight-forward, it is always a good idea to consult with counsel as each case should be examined on a case-by-case basis. Please contact the Saqui Law Group if you have questions concerning any personnel issues.

Welcome to WAPA

Governor Signs Ag Overtime Bill

Ignoring the pleas of real farmworkers and the agricultural industry, Governor Edmund G. Brown Jr. today signed AB 1066, the ag overtime legislation. This means that California will have the most stringent trigger of any state in the country for overtime for farmworkers, with 45 states having no overtime protection at all. The Governor signed this bill, supposedly to bring “equality to all workers”, yet taxi cab drivers, commercial fishermen, car salesmen, student nurses, computer programmers, and carnival workers all work without any overtime provisions whatsoever. The Governor signed this ag overtime bill in the same year that minimum wage legislation was also passed that will take California to the highest minimum wage as well as legislation forcing California to adopt additional greenhouse gas regulations for businesses in California. California is the only state in the country subject to such regulations. Today’s signing occurred despite numerous requests by the agricultural industry to meet with the Governor to discuss our concerns. The message is clear. California simply doesn’t care. These provisions will be phased in over the next few years ending with the overtime provisions to be triggered at 8 hours per day and 40 hours per week.

In the Beginning As folks transitioned out of cotton and into tree nuts, the industry recognized the need to have active and effective representation at the local, state and national levels. Having enjoyed such effective representation over the years from the California Cotton Ginners and Growers Associations, these folks yearned for the same representation in the tree nut processing industry. Issues such as air quality, food safety, labor, taxes, employee safety, and environmental concerns are at the forefront, and there is a significant need for an aggressive and dynamic Association to lead the industry into the next decade and beyond. In recognition of this, the Western Agricultural Processors Association was created in 2009. The Western Agricultural Processors Association (WAPA) shares staff and office space with the California Cotton Ginners and Growers Associations taking advantage of a unique and opportunistic situation. WAPA is a voluntary dues organization with four shared staff and one dedicated staff person. Regulatory, legislative and legal issues fall under the purview of this new organization for the tree nut processing industry, which includes almonds, pecans, pistachios and walnuts. From air quality permits to conditional use permits, from regulatory hearings on greenhouse gases to federal legislation on food safety, and from OSHA violations to assisting members on hazardous materials business plans, no issue is too small or too large for WAPA. WAPA has assembled one of the best and most capable staffs in the industry, and the results are already starting to show Membership The Western Agricultural Processors Association represents facilities involved in the processing of almonds, pecans, pistachios and walnuts.Membership in the Association is classified as Regular memberships are limited to almond hullers or processors, pecan and pistachio processors, and walnut dehydrators and processors. Associate memberships are limited to any individual or business entity which is not engaged in agricultural processing, but which provides products or services directly related to the agricultural processing industry. WAPA Associate members include, but are not limited to, commodity brokers, accounting firms, and insurance brokers. Organization The Western Agricultural Processors Association is governed by a Board of Directors, elected by its membership.The Board consists of up to 15 members from throughout the state, and throughout the industry.The Board meets on a quarterly basis and conducts an Annual Meeting in the spring of each year.WAPA, in conjunction with the California Cotton Ginners and Growers Associations, conducts a special training school for its members focused on safety.In combination with the school, the Association holds a Labor Management Seminar for all of the managers. Consulting Services In researching and considering the concept of forming a new organization, the Boards of Directors for the California Cotton Ginners and Growers Associations instructed staff to perform some of the work on a consulting basis first. The point was to determine the workload from consulting and to determine if there was sufficient interest. In November of 2007, the Association began conducting services under consulting contracts for such services as air quality permits and safety plans.The effort has been so successful that demand has progressed outside the tree nut industry into other agricultural processing facilities, including vegetable dehydration facilities, tomato processing facilities, and wheat mills, as well as cotton gins in Arizona.It was determined by the new Board of Directors of WAPA, that WAPA would maintain the consulting services to provide offsetting income to help with the expenses of getting the new organization up and running.Today, WAPA provides for a long list of satisfied clients in the agricultural processing industry, by providing critical services such as air quality, safety, food safety, and environmental issues (Hazardous Materials Business Plan, Spill Prevention Control and Countermeasure Plans, etc.).