HR Hotline: Can We Randomly Drug Test an Employee Who Often Appears Impaired?

Q: We suspect that one of our laborers is under the influence of either drugs or alcohol while on duty. Several managers have observed them slurring their speech, walking unsteadily, or being combative with co-workers. One supervisor reported that they detected the odor of alcohol when near this employee.

When confronted, the employee has denied being under the influence and denies having a drug or alcohol problem. This is not an everyday occurrence, but it’s often enough that it makes us nervous. Can we require them to submit to random testing as a condition of continued employment?

A: Connecticut law only allows random drug testing of employees in three circumstances: 

1. Where the test is authorized by federal law (such as with CDL drivers or federal contractors);
2. Where the employee works in a high-risk or safety-sensitive position; or
3. Where the drug test is performed as part of an employer-sponsored employee assistance program in which the employee voluntarily participates.

Assuming your employee is not covered by federal law, let’s turn to the high-risk exception.

Your worker may, in fact, perform high-risk duties. But they are not subject to random drug testing unless and until you submit a request to the Connecticut Department of Labor, asking for a high-risk designation.

You can get a sense of the types of positions that the labor department has designated as high-risk in the past, but you should note that the designations belong to specific employers, and not to the profession in general.

Employee Assistance Program

An employer may perform random drug testing as part of a voluntary EAP.

Unlike other types of random testing, which are random as to the individuals selected as well as to the timing of the test, EAP-sponsored testing is random only as to the latter.

The labor department may also view the “participate or be fired” aspect as voiding the voluntariness.

But note the requirement that participation be voluntary.

In your case, where the employee denies using drugs and denies having a problem, voluntary participation may be unlikely.

The labor department may also view the “participate or be fired” aspect as voiding the voluntariness.

Other Options

Based on the facts you’ve given, it’s unlikely that you’ll be able to require this employee to undergo random testing.

However, all is not lost. You have at least three other, very viable options.

First, you could conduct reasonable suspicion testing the next time a manager observes the symptoms you noted above.

Connecticut law does not require that testing be done prior to termination.

Second, you could terminate the worker’s employment based on those factors, even without testing. Connecticut law does not require that testing be done prior to termination.

And third, you could conduct non-urinalysis testing, which is not regulated by Connecticut law. This could include breathalyzers and tests of hair follicles and blood. 

When in doubt, it’s a good idea to reach out to your favorite employment attorney.

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HR problems or issues? Email or call CBIA’s Diane Mokriski at the HR Hotline (860.244.1900). The HR Hotline is a free service for CBIA member companies and is intended to provide general information and does not constitute legal advice. Please consult with legal professionals for specific guidance for your specific situation.