A Guide To Documenting Reasonable Suspicion

It should be the case that an organization has a well-documented drug and alcohol policy, which includes testing for reasonable suspicion. However, it is not simply enough to just have a general policy statement for testing. The policy needs to include reasonable suspicion testing. Where this is not the case, then organizations would need to work with their legal counsel in order to work out if the policy is one that ought to be implemented.

Receive a complaint

It is often the case that concerns regarding an employee potentially being under the influence of illicit drugs or alcohol typically comes, initially, from their colleagues, vendors, or event clients. These concerns need to be documented but should not be acted upon. A worker should not be sent for drug and alcohol testing off the back of gossip or hearsay. It needs to be determined exactly what was observed and if there were any other witnesses to the behavior. It also needs to be determined if the observed actions are now for the particular worker or if it is something that has happened before, in the past.

Observe the worker

Where possible, have first-hand observations being made by a minimum of two senior members of staff. Whilst observation may be able to be made from afar, it may be the case that the senior staff members will need to talk directly with the worker in order to be able to observe things such as dilated pupils, the smell of alcohol, etc. 

Remove the worker from the workplace

If the worker in question is using heavy equipment or machinery as part of their job, or it is in any way safety-sensitive, they should be removed immediately from the workplace and be made to wait in a safe space, such as an office or a meeting room.

Document the observation(s)

All of the observations made by the two senior members of staff should be well documented, detailing any behavior that appeared to be abnormal. It is important that the written descriptions are as detailed as possible but should not try to diagnose the worker. For instance, documented observations should include mention of movements, odors, actions, what their face looked like, what their eyes looked like, speech, inactions, and emotions.

Assess what is happening

Once everything has been fully documented, it is then time to assess all of the available information and then determine what needs to be done next. If it is decided that there is reasonable suspicion, then it is time to confront the worker and talk to them about what has been observed. However, if the two senior staff members do not believe that there is reasonable suspicion, then no further action is required.

Talk to the worker

Once reasonable suspicion has been determined, the senior members of staff should meet with and talk with the worker. It is important when doing this that it is explained to the worker what exactly has been observed and documented. To rule out the idea that the worker has violated the drug and alcohol policy, the worker should be sent for a reasonable suspicion test. This needs to be explained in a clear and calm manner and in a way that does not assume that the senior staff members have already jumped to any conclusions. All that is being done is the following procedure. In order to perform a reasonable suspicion test, the worker must first sign a consent form to say that they are happy to undertake the testing.

Get the worker tested

The senior members of staff should get in contact with the drug testing facility and make them aware that a worker is being sent for a reasonable suspicion test. At the same time, they should also arrange transportation for the worker as they are not legally allowed to drive to the test center themselves, as they may be under the influence. 

Respond to the worker’s refusal to get tested

In those instances where a worker refuses to take part in reasonable suspicion testing, then their employment contract will be terminated immediately and they should be asked to leave the workplace straight away. While a worker should never be physically restrained against their will, they should be encouraged to take a taxi back home rather than attempting to drive a vehicle themselves. If they do, then this should be reported to the authorities.

Await the results

Make the worker aware of what is going to happen depending on the outcome of the result of the testing. The worker should not be allowed back into the workplace until they have received their result and they are not paid for the days off that they are required to have. 

Respond to a positive result

If the reasonable suspicion test comes back as positive, then the senior members of staff need to then begin to follow the company’s procedures and policies in order to see what the next steps are. It may be the case that there is an employee assistance program (EAP) in place and where this is true, the service’s contact details should be shared with the worker even if their employment is not continued. It may be the case that there is a last chance agreement in place and as a result, the worker will be able to get the treatment, Work Training, and/or counseling that they require so that they are able to return to the workplace. There is the option for a company to immediately terminate the contract of the worker if they so wish to. In most instances, it is recommended that the company gets legal counsel in order to determine what is the best way to proceed.

Respond to a negative result

In the best-case scenario, the worker’s test result comes back negative for drug use. When this happens, they can immediately return to the workplace and get back to their job. No further action is required at this point.