SECTION 9.55 SUBSTANCE ABUSE
POLICY GUIDELINES FOR SUPERVISORS
Drug abuse and use, including alcohol (hereinafter, the use of the term “drugs” includes alcohol) at the workplace are subjects of immediate concern in our society. These problems are extremely complex and ones for which there are no easy solutions. From a safety perspective, the users of drugs may impair the well being of all employees and the public at large. Furthermore, employees have the right to work in a drug-free environment and to work with persons free from the effects of drugs. Drug abuse or use may also result in damage to state property.
Employees who use illegal drugs or abuse other controlled substances on or off duty, tend to be less productive, less reliable and prone to greater absenteeism resulting in the potential for increased costs, delay and risk in carrying out a department’s mission.
The State of Iowa is committed to maintaining a safe workplace free from the influence of drugs. In managing this issue, federal and state laws, case law, rules and regulations, the collective bargaining agreements and arbitration decisions must be considered. These policy guidelines on substance abuse have been developed to assist supervisors and managers in dealing with alcohol and drug related issues.
The requirements upon which the state’s substance abuse policy and these guidelines are based include the following legal, administrative and contractual considerations.
A. Legal Authority
1. The Iowa Civil Rights Act (Chapter 216A of the Iowa Code); the Federal Rehabilitation Act (29 USC § 794); and the Americans with Disabilities Act (42 USC § 104(a)):
These state and federal statutes all include a
prohibition against discrimination in employment based on a bona fide condition
of disability. A person with a
disability may be protected by this legislation on the basis of a “physical or
mental impairment” that substantially limits a major life activity such as
working. A recovering substance abuser
who is rehabilitated or undergoing rehabilitation would fall within this
definition. However, under the
Rehabilitation Act, the definition of a person with a disability, for purposes
of employment, does not include someone whose current use of alcohol or drugs
prevents such individual from performing the duties of the job in question or
whose employment by reason of such current alcohol or drug abuse would
constitute a direct threat to property or the safety of others. Similarly, the Americans with Disabilities
Act (ADA) which became effective July 1, 1992, also states that a person who
currently uses illegal drugs, comes to work under the influence of alcohol, or
uses alcohol at the workplace is not a person with a “disability.”
An employer may
hold a substance abuser to the same standards of job performance as other
employees, even if unsatisfactory performance is attributable to the employee’s
drug use or alcoholism (ADA, 42 USC Section 104(c)(4)). Thus, an employer may discipline a substance
abuser for poor job performance.
2. Drug-Free Workplace Act of 1988; State of Iowa’s Executive Order #38:
The intent of
the federal Drug-Free Workplace Act of 1988, and the State of Iowa's Executive
Order #38 is to provide an alcohol and drug-free work environment. Executive Order #38 requires state employees
to report to work in appropriate mental and physical condition and prohibits
the “unlawful manufacture, distribution, dispensation, possession, or use of a
controlled substance on the employer's premises or while conducting the
employer’s business.” Additionally,
pursuant to the Drug-Free Workplace Act, a criminal drug statute conviction for
a violation which occurred in the workplace must be reported to the employer
within five (5) days of conviction. The
department must report the conviction to the federal granting agency
administering the federal grant for which the employee was directly engaged in
the performance of work within ten (10) days of the notification.
3. Iowa Code Section 730.5; 581 Iowa Administrative Code 19.5:
Iowa Code
Section 730.5 regulates drug testing of employees or job applicants.
Under Iowa
Department of Administrative Services – Human Resources Enterprise Rules (IAC 11-54.7[3]),
the only pre-employment drug testing authorized is for Department of
Corrections’ correctional officer positions.
Pre-employment drug testing of Department of Public Safety peace officer
candidates is provided for under procedures administered by the Department of
Public Safety.
Further,
DAS-HRE rule 11.54.7(1) states, “Employees shall not report to work while under
the influence of alcohol or illegal drugs.
The unauthorized use, possession, sale, purchase, manufacture,
distribution, or transfer of any drug or alcoholic beverage while engaged in
state business or on state property is prohibited. Employees who violate this policy are subject
to disciplinary action up to and including discharge.”
B. Labor Agreements
The current
collective bargaining agreements must be reviewed to determine any limitations
or procedural requirements regarding substance abuse or the Employee Assistance
Program (EAP) for employees covered by that Agreement.
A. On-The-Job Use, Abuse
or Misconduct
1. Evidence Of Use/Abuse
a. On-The-Job Use:
This situation
involves either a direct observation of employee use on-the-job or
circumstantial evidence such as an open bottle or can, or the smell of an
alcoholic beverage on the employee’s breath; a discarded needle or other drug
paraphernalia, etc.
b. Coming
To Work Under The Influence:
This situation
arises when the employee reports to work or returns from lunch or breaks, etc.,
and appears to be under the influence of alcohol or drugs.
Arbitrator Charles
Carnes gave a description of the symptoms of intoxication or impairment in General
Felt Industries v. International Association of Machinists and Aerospace
Workers, 74 LA 972, 975 (Carnes 1979):
Most
arbitration cases of this sort seem to apply a “subjective test” (probably
because that is usually the only kind of evidence available). This test utilizes the classical signs of
intoxication which are fairly well known to give a fair indication of the state
and degree of influence. The signs are:
·
speech -- thick, slurred, loud;
·
flushed face;
·
general appearance -- dishevelment, dirtiness, unkemptness;
·
appearance of eyes -- red, watery, heavy lids, fixed pupils;
·
breath -- foul, distinctive odor of various intoxicants;
·
gait -- walking unsteadily, deliberately and overcarefully, swaying,
weaving, stooped;
·
behavior -- excessive silliness or boisterousness, etc.
Further, the
Iowa Criminal Jury Instructions Section 2500.5 (6/88) allows a jury to conclude
that a person is “under the influence” of alcohol or drugs when one or more of
the following is true:
1) His/Her reason or mental ability has been
affected;
2) His/Her judgment is impaired;
3) His/Her emotions are visibly excited;
4) He/She has, to any extent, lost control of
bodily actions or motions.
Judgment must
be exercised in response to the totality of the observed circumstances. The greater the number and more pronounced
the signs, the greater the assumption of alcoholic or other chemical influence
and thus, performance impairment.
c. Action To Be Taken:
When the
supervisor or other employees observe the above-referenced symptoms or observe
an employee possessing or consuming alcohol, or possessing or using illegal
drugs on the employer’s premises or while conducting the employer’s business,
the supervisor must proceed as follows:
(1) Conduct
an investigation immediately. Witnesses
are to be instructed to immediately reduce their observations to writing and to
sign and date their statements.
Carefully collect and preserve any relevant evidence. (State employees are entitled to protections
of the U. S. Constitution (search and seizure clause). Before conducting ANY searches,
contact your personnel officer.)
(2) Fulfill the requirement
of due process. The investigation must
include a meeting with the employee and if the employee requests, a union
representative, or if the employee is not covered by a labor agreement, a
non-contract covered co-employee. The
supervisor must present the allegations to the employee at this meeting and
allow the employee an opportunity to respond to the charges and offer any
mitigating circumstances. If possible,
this meeting should take place prior to sending the employee home. If chemical dependency is raised as a defense
in the investigation or if the supervisor reasonably believes that
chemical dependency may be a mitigating factor, the disciplinary action may
be held in abeyance pending the outcome of a chemical dependency evaluation
(see Section III.D on Chemical Dependency).
(3) Suspend the employee with
pay pending investigation. This
action must be reduced to writing in the form of a letter or memo and given
(certified mail or hand delivered) to the employee. Further, if hand delivered, the employee must
be asked to sign the letter to acknowledge its receipt. If the employee is unable or refuses to sign
the acknowledgement of receipt, the supervisor must make note of that fact on
the letter, and date and initial it.
Place a copy of the letter in the employee's personnel file.
(4) Assist the employee in making
arrangements to be taken home. DO NOT
allow the employee to drive home. If the
impaired employee insists on trying to drive or operate a vehicle, call the
appropriate law enforcement officials.
(5) Impose discipline when
warranted. After an investigation has
been conducted and if the findings support the imposition of discipline,
management must determine the degree of discipline to be imposed. Thereafter, a meeting to inform the employee
of the disciplinary action to be imposed must be held. Because this meeting is not investigatory,
but is only to inform the employee of the action to be taken, union
representation is not appropriate. Keep
in mind, however, that if this meeting deviates from merely informing the
employee of a disciplinary action to a discussion of the merits of the
investigation, the nature of the meeting has changed and the employee has the
right, if requested, to have a union representative present (refer to
Weingarten Rights in the Managers and Supervisors’ Manual, Section 11.20(B)(3
and 5).
(6) If the employee raises
chemical dependency as a mitigating factor, see Section IIIC.
2. Indirect
Manifestations of Substance Abuse
When dealing
with issues of deteriorating job performance, or tardiness or absenteeism, if
the supervisor suspects that substance abuse may be the cause of the problem,
the supervisor should consult with the Iowa Employee Assistance Program (EAP)
and the DAS-HRE personnel officer assigned to the department to discuss the
employee’s symptoms. If they determine
that there is a reasonable likelihood that substance abuse is the basis of the
employee’s problem, a plan of action needs to be developed. The work performance and behavior problems
need to be well documented. When
counseling the employee regarding his/her work performance, the supervisor
should describe the problems and suggest that the employee seek assistance
(refer to EAP) in resolving any personal problems interfering with work. The supervisor should not diagnose the
problem (e.g., “I think you are an alcoholic”).
A supervisor
should take disciplinary action as necessary, and put the employee on notice
that a lack of improvement in job performance or attendance will lead to
further disciplinary action up to and including discharge. (For further guidance, see Section 9.25.)
3. Illegal Possession,
Sale, Distribution, Manufacture Of Drugs Or Alcohol On-The-Job Or On The
Employer's Property
If the
supervisor becomes aware of, or reasonably believes or suspects illegal
possession, sale, distribution, or manufacture of drugs or alcohol, the
appropriate authorities should be called to handle the situation. On the capitol complex, call Capitol Police
(281-5608); elsewhere call the local law enforcement authorities.
Management must
conduct an independent investigation of the situation in order to determine the
appropriate disciplinary action, regardless of the status or outcome of any
criminal investigation. Information
obtained in the administrative investigation under threat of loss of job or other
discipline is not admissible in a criminal proceeding.
Arrest and
incarceration may necessitate temporary removal of the employee from the
job. Leave without pay or reassignment
of duties are possible alternatives based on the circumstances. If there is a nexus between the offense and
the employee’s job, termination on the basis of the behavior leading to the
employee’s arrest may be appropriate following an independent
investigation. However, conviction of charges
of illegal possession, sale, distribution, or manufacture of drugs or alcohol
while conducting the employer’s business or while on the employer’s premises
(including state-owned vehicles) shall result in discharge.
Again, the
Drug-Free Workplace Act of 1988 requires that any employee’s conviction of a
criminal drug (not alcohol) offense which occurred in the workplace must be
reported to the employee’s supervisor within five (5) days after the
conviction. The department must report
the conviction to the federal agency administering the grant for which the
employee was directly engaged in the performance of work within ten (10) days
of notification.
B. Off-Duty
Misconduct
For an
arbitrator to sustain discipline for off-duty misconduct resulting from drug or
alcohol abuse/use, the employer must show that there is a clear nexus between
the off-duty misconduct and the employee’s job.
That conduct must adversely affect the employer’s business or
reputation, threaten the welfare of other employees, or render the employee
unfit to perform his/her duties. Inland
Container Corp. v. United Paperworkers of America, 28 LA 312 (Ferguson
1957).
Jobs that
require employees to enforce laws or supervise those convicted of breaking the
law have an apparent nexus between the job and off-duty unlawful misconduct. For such employees, use, possession, sale,
distribution, or manufacture of illegal or controlled substances is grounds for
summary discharge without consideration of chemical dependency as a mitigating
circumstance after an independent investigation substantiating the allegations.
However, there must be clear notice to employees that this penalty will be
imposed for such an infraction.
Depending on
the circumstances (the employee’s work history and the nexus between the
offense and the employee’s job), behavior leading to arrest or a conviction of
Operating While Intoxicated (OWI), or public intoxication may be grounds for
discipline or discharge. Following an
administrative disciplinary investigation, if an employee is found to have
operated a state vehicle while impaired, regardless of on or off duty, the
employee will be discharged.
When an
employee whose job duties require him/her to possess a valid driver’s license,
chauffeur’s license, or commercial driver’s license (CDL) loses his/her license
due to drug or alcohol offense and cannot get a work permit, the employee shall
be immediately discharged on the grounds that the employee no longer meets the
minimum qualifications for the job.
Management however, should assist the employee in obtaining a work
permit.
If an employee
is incarcerated after a conviction of a drug or alcohol offense and is
unavailable for work, the employee will be discharged unless extenuating
circumstances exist. If extenuating
circumstances exist, the appointing authority may, at his or her discretion,
grant a leave of absence without pay or annual leave for the period of a
limited incarceration. However, it is
the employee’s responsibility to notify the employee’s supervisor and the
employee must request the leave of absence. Employees who are absent from duty for three
consecutive workdays without proper authorization from the appointing authority
may be considered to have voluntarily terminated employment.
If a department
has employees in positions which have a strong nexus between the job and
off-duty drug or alcohol offenses, work rules must incorporate requirements to
report such arrests or convictions and must give notice of the penalty to be
imposed if the independent investigation substantiates the alleged offense.
C. Chemical
Dependency As A Mitigating Factor
As the
substance abuse policy states, the discipline for offenses is discharge absent
mitigating circumstances. Mitigating
factors include the length of employment, the employee’s work history and performance. Chemical dependency (drug or alcohol) may
be considered a mitigating circumstance.
If chemical dependency is raised as a defense in the investigatory
meeting, or if the supervisor has a reasonable belief that chemical
dependency may be a mitigating factor, the discipline may (at management’s
discretion) be held in abeyance while the employee seeks an evaluation and
treatment, UNLESS:
1. The employee’s job is such that the offense would compromise
his/her ability to responsibly perform the job duties or would compromise the
employer’s fulfillment of the agency’s mission, or
2. The employee has previously violated this policy and been given a
final written warning or is under a “Last Chance Agreement,” or
3. The offense is so egregious that summary
discharge is the appropriate action.
During the
period of time when the employee is waiting for an evaluation to determine
chemical dependency, he/she will not be permitted to work. The employee may use vacation, compensatory
leave, sick leave as appropriate, or request leave without pay. If the results of the evaluation conclude
that the employee is not chemically dependent, the supervisor should proceed
with discipline. If the employee is
found to be chemically dependent, and it is the employee’s first offense, the
chemical dependency may be considered a mitigating factor and a “Last
Chance Agreement” may be drawn up that would provide for lesser discipline if
the employee successfully completes a treatment program, and agrees to abstain
from the consumption of alcohol or use of drugs for a reasonable period of time
(generally, two (2) years). Any time
taken as leave without pay may be considered as part of the disciplinary
action. Treatment time can be taken as
sick leave upon request of the employee with appropriate documentation if
accrued sick leave is available. The
last chance agreement must be signed by the supervisor, the employee, and the
union representative (if applicable).
An alternative
action, depending on the circumstances, is to terminate the employee at the
time of the offense and, following an evaluation and successful completion of
treatment initiated by the employee, reinstate him/her with a written “Last
Chance Agreement.” (Call your personnel
officer for assistance.)
D. Chemical Dependency
Evaluations
It is the
employee’s responsibility to seek evaluation and to provide management with
documentation of a chemical dependency evaluation and recommendations if the
employee wants the chemical dependency to be considered as a mitigating
circumstance.
Evaluations for
chemical dependency must be conducted by a certified substance abuse
professional at a licensed facility.
Evaluations may be secured directly through a chemical dependency
program. The Iowa Employee Assistance
Program (EAP) (515-244-6090 or 1-800-327-4692) can assist with securing an
evaluation.
Some facilities provide evaluations at no cost. Some charge a fee which may or may not be
covered by the employee’s health insurance.
EAP is familiar with the state’s health insurance coverage and can be
most helpful in securing evaluations.
Any fees for evaluations not covered by health insurance are the
responsibility of the employee.
The State’s intent is to provide a drug and alcohol-free workplace. These guidelines are designed to assist supervisors and managers in dealing with these complex issues. Supervisors and managers may address specific questions or problems regarding the application of the Substance Abuse policy and these guidelines with your personnel officer.