Reasonable Suspicion Workplace Manager Training 60

© 2021 Roe Law Group, PLLC 4 RECEIVING A COMPLAINT If you receive a complaint, take time to ask what the person observed, when the person observed it, and if others witnessed or commented on this situation.

You will also want to determine if the behavior is new or has happened in the past (possibly indicating a pattern of behavior). © 2024 Roe Law Group, PLLC<br>

5 Reasons Why We Do Nothing Compassion
Guilt
Friendship
Loyalties
Jeopardizing employee’s livelihood/reputation
Loss of employee confidence/support
Fear for personal safety © 2024 Roe Law Group, PLLC<br>

6 You are not making determinations based on anything other than observable indicators that will be covered in today’s session MAKING A
DECISION © 2024 Roe Law Group, PLLC<br>

© 2024 Roe Law Group, PLLC 7 YOU ARE NOT REQUIRED TO TEST You don’t need a positive test to take action as long as you have “reasonable suspicion.” 

Reasonable suspicion means the employer has a legitimate reason, based on logic, facts or observation, to believe an employee has been drinking alcohol or taking drugs.<br>

© 2024 Roe Law Group, PLLC 8 Here are a few examples: YOU ARE NOT REQUIRED TO TEST 8 Direct observation of drug use
A report from a reliable source that an employee is using drugs or alcohol
Evidence an employee has used, possessed, sold, solicited or transferred drugs while on the clock<br>

9 Effects of Marijuana Use Smoking

Immediate absorption through lungs
Peaks in blood within minutes; causes “high” that can last 2-3+ hours
Most behavioral and physiological effects return to baseline levels within 4-6 hours after drug use
Residual effects seen in behaviors up to 24-48+ hours after use © 2024 Roe Law Group, PLLC<br>

Effects of Marijuana Use Ingesting through eating

Slower absorption rate over several hours, metabolized in the liver within 1-2 hours and causes a “high” that can last anywhere from 2-8+ hours 
Most behavioral and physiological effects return to baseline levels within 9-11+ hours after drug use
Residual effects have been shown in behaviors 24-48+ hours after use © 2024 Roe Law Group, PLLC 10<br>

11 Recognizing
Signs of Marijuana Impairment Reddened, bloodshot eyes. Pupils may appear dilated
Moods
Absenteeism
Actions
Work Patterns
Accidents
Relationship to others on the job © 2024 Roe Law Group, PLLC<br>

12 © 2024 Roe Law Group, PLLC Moods From Marijuana Depressed
Anxious
Irritable
Suspicious/Paranoid
Complains about others with no rational basis
Emotional unsteadiness
Mood Changes after lunch or break<br>

© 2024 Roe Law Group, PLLC 13 13 Signs to Look For Leave and Attendance
Unexplained or unauthorized absences from work
Frequent tardiness
Excessive use of sick leave
Patterns of absence such as the day after payday or Monday/ Friday
Frequent “emergencies” (e.g., car trouble, family emergencies, legal problems)
The employee may also be absent without explanation for significant periods of time<br>

14 © 2024 Roe Law Group, PLLC Work Patterns Inconsistency in quality of work
Sudden or erratic high and low periods of productivity
Poor judgment/more mistakes than usual and general carelessness
Lapses in concentration
Difficulty in recalling instructions
Difficulty in remembering own mistakes
Using more time to complete
work/missing deadlines
Increased difficulty in handling
complex situations<br>

© 2024 Roe Law Group, PLLC 15 Performance Problems Missed deadlines
Careless or sloppy work or incomplete assignments
Production responsibilities not met
Many excuses for incomplete assignments or missed deadlines

In jobs requiring long-term projects or detailed analysis, an employee may be able to hide a performance problem for quite some time.<br>

© 2024 Roe Law Group, PLLC 16 16 Relationships Relationships with co-workers may become strained.
The employee may be belligerent, argumentative, or short-tempered, especially in the mornings or after weekends or holidays. at Work<br>

17 © 2024 Roe Law Group, PLLC ACTIONS Withdrawn or improperly talkative
Spends excessive amount of time on the telephone
Avoids talking with supervisor regarding work issues
Staggering or swaying back and forth
Slurring of speech
Distinct odor(s)
Bullying of others<br>

© 2024 Roe Law Group, PLLC 18 18 RELATIONSHIPS AT WORK The employee may become a “loner.”
The employee may also have noticeable financial problems evidenced by borrowing money from other employees or receiving phone calls at work from creditors or collection companies.<br>

19 © 2024 Roe Law Group, PLLC Supervisor’s Role Identify unusual or inappropriate behavior
Observe the employee
Objectively document behaviors
Determine if testing or suspension is required
Have a “sit down” with employee
Transport the employee<br>

20 Things To Avoid: Enabling Covering up for the employee
Lending the employee money
Allowing the employee’s spouse to call about the employee’s absence
Failing to refer the employee to the EAP
Shifting the employee’s work to other employees
Trying to counsel the employee on your own
Making excuses to others about the employee’s behavior or performance
Adjusting the employee’s work schedule; come in late and make up time © 2024 Roe Law Group, PLLC<br>

21 21 As a supervisor, you have the day-to-day responsibility to monitor the work and on-the-job conduct of your employees. You are not responsible for diagnosing. SUPERVISOR ROLE © 2024 Roe Law Group, PLLC<br>

22 But you are responsible for:
Assigning, monitoring, reviewing, and appraising work and performance;
Setting work schedules, approving or disapproving leave requests;
Taking necessary corrective and disciplinary actions when performance or conduct problems surface; and
Contacting HR. SUPERVISOR ROLE © 2024 Roe Law Group, PLLC<br>

© 2024 Roe Law Group, PLLC 23 Do Not Diagnose What you should do is identify the behaviors that concern you, state them, and document them the Problem<br>

© 2024 Roe Law Group, PLLC 24 DO NOT DIAGNOSE THE PROBLEM For example: “I am not sure what is wrong, but I am concerned by your slurred speech and bloodshot eyes.”

The only way to know for certain whether an employee is drunk at work is to have the worker take a blood alcohol test and you don’t have to test to have reasonable suspicion.<br>

© 2024 Roe Law Group, PLLC 25 As long as you document your observations and don’t speculate or discriminate, you don’t necessarily need proof to take action. Remember, You Don’t Need Proof to Take Disciplinary Action<br>

26 Documentation is Instrumental Use of a Reasonable Suspicion checklist
Where possible second opinion
May take time to document observations
Action should proceed with directing employee in for test
Seek confirmation from another supervisor (Best Practice)
List signs and symptoms
Be specific and brief
Be objective
Include date and time © 2024 Roe Law Group, PLLC<br>

27 YOU DON’T NEED PROOF TO TAKE DISCIPLINARY ACTION Here are some best practices:
Discuss the employee’s behavior with the employee in front of one or two witnesses.
To avoid discrimination claims, be sure and apply the same standards to all employees.
If you make an exception for an employee who might be going through a personal issue at the time, make sure to document it.
If you suspect an employee is under the influence, it’s best to send them home. Make sure you arrange for transportation for that person. © 2024 Roe Law Group, PLLC<br>

28 EXAMPLE OBSERVABLE BEHAVIOR “This person looks like they’re on drugs” Not Specific
 
“Today, March 4, 2020, John came in 30 minutes late this morning for his 9:00 a.m. shift. When he arrived he looked disheveled, as his shirt was untucked, his shoes laces were untied, he had bloodshot eyes and I heard him slurring his speech as he was talking to some co-workers. A few minutes after, I approached him and asked why he was late. He said he got caught in traffic, but just kept laughing and smirking, for no reason, and didn’t appear to want to make eye contact with me. There also was a pungent smell of marijuana coming from his clothing. Specific © 2024 Roe Law Group, PLLC<br>

29 How to Approach the Employee Be confident, diplomatic and respectful
Don’t approach employee from a confrontation standpoint
Stick to the salient points – not subjective but objective
Give the employee the opportunity to describe and explain the events from their viewpoint
Send employee in for testing or home on suspension © 2024 Roe Law Group, PLLC<br>

30 Expect an Emotional Response Excuses/apologies/sympathy (Interrupt and let the employee know there will be time for them to tell their side of the story)
Anger (Acknowledge their frustration but stay on track and explain their options)
Tears and helplessness (Acknowledge that this can be emotional and allow them time to get composed)
Deflecting/Innocence (Stay focused on the facts and what you’ve documented) © 2024 Roe Law Group, PLLC<br>

© 2024 Roe Law Group, PLLC 31 NOTE! People with alcoholism, who are substantially limited in a major life activity, will have a disability under the Americans with Disabilities Act (ADA). 

However, even if a person is considered “disabled,” an employer may still discipline, discharge, or deny employment to an alcoholic whose current use of alcohol adversely affects job performance or conduct.

Likewise, an employer need not allow the use of alcohol or being under the influence in the workplace as a “reasonable accommodation.”<br>

© 2024 Roe Law Group, PLLC 32 Reasonable Suspicion “Checklist” A good checklist starts before the checklist is needed
Because cannabis is a “lawful consumable product,” regular documentation, or at least observation, of employee performance, appearance, and attitude/disposition to establish a baseline is good practice“ Arbitrary or capricious” testing is prohibited. 
However, adverse action—due to cannabis use—may be taken when the employee lacks the “clearness of intellect and control of self that the employee would otherwise have”
Thus, establishing a baseline is important for demonstrating that “clearness of intellect and control of self” has degraded.
Documentation of the events causing the reasonable suspicion
Include a thorough written summary of the specific facts and circumstances
Observations by two supervisors helps ensure the right decision.  Good practice is to have each supervisor fill out separate checklists absent influence from the other
Get witness statements from other employees, the more information and documentation the better<br>

© 2023 Roe Law Group, PLLC 33 What is the Basis for Discipline and Discharge The circumstances under which an employer can take action against an employee regarding cannabis, include:
The employee lacks the “clearness of intellect and control of self that the employee would otherwise have” as a result of consuming cannabis
Where testing is authorized, the results indicate a presence of cannabis. 
However, pursuant to Minnesota law, a positive initial screening test must be supported by a second positive confirmatory test
A violation of the employer’s work rules regarding cannabis, “provided that the rules are in writing and in a written policy”
As otherwise authorized or required under state or federal law, or if failure to do so would cause monetary or licensing-related benefit under federal law © 2024 Roe Law Group, PLLC<br>

Roe Law Group, PLLC
60 South Sixth Street, Suite 3750
Minneapolis, MN 55402
612-351-8305 (direct)
jroe@roelawgroup.com
www.roelawgroup.com



These materials are for informational purposes only and should not be used as legal advice. 34 JESSICA ROE 34 For More Information © 2024 Roe Law Group, PLLC<br>