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Don't HR Alone #43 - Drugs, Medicare, and Job References

Suspected Drug and Alcohol Use

Question: What is the best way to confront an employee who seems to be under the influence of drugs and alcohol? This employee had bloodshot eyes, smelled of alcohol, and was “not herself.” Answer: If you suspect an employee has a drug or alcohol problem that may be affecting job performance, it’s a best practice for the employee’s direct supervisor, management representative, or human resources department to investigate and document the specific, objective, observable behaviors. When doing so, consider the following:

  • Could the employee have a disability or some other medical issues that are causing her to have a perceived smell of alcohol?

  • Do observations/reports about this employee come from a credible source, such as a trusted member of the management team? Are the symptoms and observations reasonable cause to suspect alcohol or drug abuse?

“Reasonable” is not merely rumored or speculation but a suspicion based on specific, objective facts and rational inferences from observing an employee’s behavior. Specific objective facts and rational inferences drawn from those facts must justify reasonable suspicion. This may include alcohol on the breath, lapses in performance, inability to appropriately respond to questions, and physical symptoms of alcohol or drug influence. Examples of drug and/or alcohol abuse include but are not limited to the following signs:

  • Odor of alcohol

  • Odor of marijuana

  • Slurred speech

  • Flushed, swollen face

  • Red or runny eyes or nose

  • Pupils dilated or constricted, or unusual eye movement

  • Lack of coordination

  • Tremors or sweats

  • Weariness, exhaustion

  • Sleepiness

If there is a safety concern, you should take immediate action and confront the employee. It’s a good idea to review your existing policy regarding drug and alcohol use in the workplace. If your business has a policy that prohibits use of alcohol or drugs while at work, AND you have a drug and alcohol testing policy, then you can send the employee for testing in accordance with the policy. If there is no testing provision as part of the policy, you should not send the employee for testing without consulting with legal counsel first. First address the specific observed behaviors with the employee in person. Say something like, “Over the last few weeks, I’ve noticed X, and today in particular I observed Y. What is going on? Are you OK?” You may want to have two people meet with the employee to verify what is observed. The employee may give a partial answer that will give you room to ask follow up questions including, “Have you been drinking on the job?” Often, the employee will give a partial admission that will help you determine whether she has in fact violated company policy and/or has a problem. Disciplinary action or termination of employment may be warranted depending on the situation. Granting a leave of absence for an employee to seek treatment might be the appropriate step too. It all depends on the facts and circumstances. Under the Americans with Disabilities Act (ADA), you can’t fire an employee because of alcoholism or because you perceive the employee to be an alcoholic. You can, however, discipline or discharge employees whose alcoholism prevents them from properly performing their job duties. While the ADA specifically recognizes alcoholism as a disability, it also allows employers to:

  • prohibit employees from being under the influence of alcohol while at work, and

  • hold employees with alcohol problems to the same job performance standards and workplace behavior as other employees.

The Equal Employment Opportunity Commission has published additional information on alcoholism and the ADA.

Removing Medicare-eligible employees from group health plan

Question: We’re a small company with only 15 employees. One of our employees will keep working after his 65th birthday. Can we remove him from our group health plan since he’ll be eligible for Medicare? Answer: Probably not. Federal laws known as the Medicare Secondary Payer (MSP) rules impose requirements on employer-sponsored health plans if the employer has 20 or more workers. The MSP rules determine which coverage–the employer’s plan or Medicare–is the primary payer. The rules vary depending on several factors: the employer’s size, whether claims are for active employees versus former or retired employees, and whether the person’s Medicare eligibility is based on age versus disability. If the employer’s plan is deemed the primary payer, the employer is prohibited from dropping the employee (or spouse) from coverage or offering any incentives to discourage enrollment. Those MSP prohibitions do not apply, however, if the employer has fewer than 20 workers like your company.

The next issue is whether a small employer can exclude employees age 65 and older from its group health plan. Regardless of the employer’s size, the federal Age Discrimination in Employment Act (ADEA) generally prohibits group health plans from excluding active employees (or spouses) from coverage solely because they are Medicare beneficiaries. The ADEA makes an exception for employers that can meet an “equal benefit or equal cost” standard, but those cases are infrequent.

Check with your benefits broker and employment counsel before excluding this employee from your group health plan.

Employment Verification

Question: How much information should we provide when we receive calls to verify employment for a former employee? Should we just verify dates of employment? Title? Eligibility for rehire? Answer: You are not required to provide information regarding a former employee when references are requested. Because of the risk of defamation claims, many employers have chosen to have policies in which only dates of employment and position are confirmed. Employers can encounter problems if the employee can prove that a statement was made with a reckless disregard for whether it was true or not true. In the employment setting, defamation claims primarily arise from the following two situations:

1. Discussing an employee’s alleged poor performance, misconduct, or reasons for termination beyond those who need to know. 2. Responses to reference checks.

You may avoid defamation claims if you acquire and apply a basic understanding of the law in this sensitive area and follow a few simple precautions. In regard to reference inquiries, that means limiting your reference checks responses to confirmation of dates of employment and positions held, and obtaining a signed release from an employee before releasing any salary history or other employment data. You may also need to consider whether withholding information may put your organization at risk of negligent referral. Negligent referral in this context can be defined as the failure to disclose accurate information about a former employee that may have helped the new employer prevent an incident in the new workplace. If you are concerned with the potential of negligent referral, you should consult with legal counsel on whether information on a former employee should be disclosed.

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