Use and abuse of alcohol and drugs has a detrimental effect on the productivity, attendance, and health of our work force. As a public employer, we must be vigilant to protect the safety and welfare of the public with whom we interact and the employees with whom we work.
The longstanding policy of the State is and has been that employees will be subject to criminal, civil and disciplinary penalties if they distribute, sell, attempt to sell, possess or purchase controlled substances while at the workplace or while performing in a work-related capacity. Such illegal acts, even if engaged in off duty, may result in disciplinary action. In those work locations where it is permitted, an employee may possess and use a controlled substance which is properly prescribed for him or her by a physician.
It has also been the continuing policy of the State that employees are prohibited from on-the-job use of, or impairment from, alcohol or controlled substances. In cases where an appointing authority or a designee has a reasonable suspicion that an employee is not able to perform his or her duties as a result of a disability which may be caused by alcohol or a controlled substance, the appointing authority may proceed under the provisions of Section 72 of the Civil Service Law and require that the employee undergo a medical examination to ascertain the cause of the disability. Where testing for alcohol or a controlled substance occurs, appropriate medical procedures and tests should be utilized to assure accurate and proper results. Confidentiality of the testing process and results is an important aspect of this procedure for any affected employee.
A “reasonable suspicion” must be based upon specific, reliable observation that the appointing authority or designee can articulate concerning the appearance, behavior, speech or body odor of the employee. The following observations may indicate drug or alcohol use: unsteady gait, odor of alcohol on the breath, thick or slurring speech, aggressive or abusive language or behavior, and disorientation or lethargy.
It is also not unreasonable for the appointing authority to consider the employee’s time and attendance patterns, such as absences around weekends, pass days or payday, excessive use of sick leave, excessive lateness and unauthorized absences, on-the-job accidents, difficulty in recalling instructions or conversation, poor relationships with co-workers and supervisors, and other variations in productivity when making a determination as to whether a “reasonable suspicion” that an employee is suffering from a drug- or alcohol-related disability is present.
Such medical examinations may be required under the safeguards of Section 72 of the Civil Service Law for employees who are permanently appointed competitive employees or employees subject to due process before termination. Other State employees who are not entitled to any due process protection before being terminated or placed on involuntary leave may also be required to undergo such a medical examination, if appropriate under the circumstances.
Once a determination is made that an employee is using, is under the influence of, or is not able to perform his or her duties due to alcohol or a controlled substance, the appointing authority may determine the appropriate action to take. When considering the appropriate action to take, the appointing authority may determine that the affected employee should be disciplined because of the alcohol or drug use. Disciplinary action may be taken pursuant to the procedures contained in the collectively negotiated agreement or the law, as appropriate and required.
On the other hand, the appointing authority may determine that, given the nature of the job and the employee involved, the employee could benefit from the Employee Assistance Program (EAP). In such a case, the employee should be directed to the appropriate EAP coordinator to assist him or her with whatever problem exists. The Employee Assistance Program is a referral service set up at individual work sites and available to every employee. Should the employee have a drug or alcohol-related problem, EAP would provide the employee with a list of places which treat such conditions.
Where an employee is disabled by alcohol or drug use, the appointing authority may also decide to pursue the available disability leave procedures contained in Section 72 of the Civil Service Law. While employee union representation or concurrence is not required when pursuing Section 72 action, it is suggested that appropriate employee representatives be alerted as to the action contemplated.
An agency which has existing additional policies, procedures or practices which apply to its employees may continue to implement those policies, procedures and practices. The agency involved should notify its OER liaison of them. If an agency believes that a pre-employment or pre-appointment drug test should be utilized, that agency should consult with the Department of Civil Service to determine the job relatedness of such a test or to seek that Department’s approval to include it in the required pre-employment or pre-appointment physical.