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The personal problems of employees should be of serious concern to employers and managers. On top of our general regard for the well-being of those we employ, we also know that employees’ personal problems drag down productivity, quality and the work environment overall.
INDICATORS OF ADDICTION
While challenges relating to childcare, a serious illness or a household disaster are problems that should be accommodated, controlled-substance problems are at least as problematic and can’t be justified as simply bad luck. Employers and managers need to understand how to spot substance-abuse problems, carefully weigh whether and how to get law enforcement involved, and consult with an employment lawyer about implementing policies to deal with future issues.
According to the National Institute on Drug Abuse, employees who use controlled substances are more likely to “change jobs frequently, be late to or absent from work, be less productive, be involved in a workplace accident and potentially harm others and file a workers’ compensation claim.”
It has been my professional experience that those who find their way into the criminal justice system for drug-related charges often do exhibit these characteristics. As a criminal-defense lawyer, my professional focus is representing and defending people accused of crimes. Many of my clients are accused of drug crimes and drug use-related crimes: controlled-substance possession, sales, fraudulent prescriptions, theft, embezzlement, driving under the influence of a controlled substance and others.
While I do represent innocent people wrongly charged with drug crimes (and wrongful convictions remain a serious problem in our country), many of my clients do struggle with substance-abuse issues. In working with them, I have observed patterns of behavior that tend to recur. Many people with controlled substance abuse problems don’t end up getting charged with crimes—often because of luck. Many of these substance abusers are working.
As an employer or manager, you should be aware of these patterns, understand how to deal with chemically addicted employees and understand the reasons to get law enforcement involved (and the very serious dangers of doing so).
Severe addictions vary in expression from substance to substance and from person to person. Nevertheless, those who are severely addicted and are still functioning in society tend to exhibit certain similar characteristics. Any one of the following indicators could be found with no underlying addiction present. It is possible that even two or more might be present without the person having a substance-abuse issue. But the more factors that present themselves, the more likely there is a problem. It is also important to distinguish factors that seem to have been present in the individual for a long time, as opposed to those that seem to have come into existence somewhat recently.
- Often, there is a discrete starting point for an addiction. Experimentation as a young adult creates a latent addiction that is reopened in one’s 30s or 40s by a crisis, financial or relationship stress, or even boredom. An injury or pain problem that is legitimately being treated with opioids leads to an all-consuming addiction complete with fraudulent prescriptions and purchasing medication from actual drug dealers. Physical or sexual abuse or other trauma can also be a starting point for a substance-abuse problem.
- One of the strongest indicators (and adverse effects) of controlled-substance addiction is a reduced ability to get work done. From completing high-level projects to doing routine things such as showing up on time, finishing simple reports and responding to email, those struggling with addiction find it difficult to do all the things that most typical employees easily accomplish every day. An addiction radically changes the addict’s priorities.
While for most people using drugs is something that could readily be on a list of things to absolutely NOT get done, for an addict, the unstated goal is to structure life around securing and consuming the substance.
Lying among the severely addicted often rises to a high art. Their secret—that they are in thrall to an addiction that they spend most of their time, money and energy in service to and that they will commit illegal acts to serve—cannot be disclosed to friends, family, employers and society at large. Consequently, many addicts are constantly lying to others and are often quite good at it. They often lie to themselves about what is going on, which is one reason why their lies to others are often convincing: they believe what they are saying.
You’re likely to see repeated lateness and absences that no longer have plausible justifications. Because addicts often are working to satisfy their addictions, they are otherwise occupied when they should be somewhere in the mainstream community. Many addicts often get very poor sleep, which in and of itself can cause lateness.
STEPS TO TAKE
In the same way you might approach an employee with an alcohol problem about getting help, you may do the same for an employee with a controlled-substance problem. It is always a challenge to convince an addict of any type to face a problem. It is even harder when the substance to which the person is addicted is illegal.
Unless you’ve caught the person red-handed, he or she is likely to deny or downplay your concerns. But if treatment is an option, the issue can be raised without being overly confrontational.
Creating and implementing a drug-testing policy should only be done with the services of a lawyer specialized in employment law. But an employer or manager can implement some small changes that are likely to have a beneficial effect. First, be rigorous about maintaining punctuality standards. When employment is strongly tied to being where the employee is supposed to be at the exact times he or she is supposed to be there, substance abuse problems are often more conspicuous.
Second, don’t provide an employee space to function as an addict at work by having other employees compensate for the suspected addict’s substandard performance. Insist on getting the agreed-upon production from the employee. If the employee fails to meet this standard, you may then have legitimate recourse to move forward with termination or other sanctions that are appropriate for the circumstances.
In the event that you become strongly convinced an employee has a substance-abuse problem, you have some difficult choices. If you actually discover controlled substances in the possession of the employee (or in the employee’s workspace where other employees do not work), you may call law enforcement.
This is a drastic step that, as a criminal defense lawyer, I am reluctant to advise you to take. Once you have involved law enforcement, it is possible that you and your business will be mired in a criminal case for months or even years. In calling law enforcement, you have made yourself a witness and could end up having to testify at a trial. This means being subject to cross-examination from a criminal-defense lawyer like me.
Anything from your past that may show evidence of bias, prejudice or your interest for or against any party in the case may be fair game.
However, there are circumstances under which involving law enforcement should probably always occur:
- Discovering substantial amounts of a controlled substance (e.g., you reach into an employee’s desk to retrieve a quarterly report and see a baggie of what is very likely 2 or 3 ounces of methamphetamine)
- An employee who works in accounting or otherwise handles money for your business is discovered to likely have a serious addiction at around the same time that financial irregularities pop up.
To pull the trigger on such a call, though, without involving a lawyer can have the effect of law enforcement delving deeper into your business than you may want. Unless it is an emergency, call your lawyer before taking any other action.
If, for example, an addicted employee has been embezzling from you and you call law enforcement, you might have forensic accountants and fraud examiners looking at every element of your financials going back years.
Your protestations that the employee in question has only worked for you for 18 months will not dissuade law enforcement from digging as deeply as they think necessary. Once law enforcement gets involved, they may decide there is probable cause to charge you with something completely unrelated to the investigation. This happens more often than many realize.
In today’s tight labor market, terminating otherwise good employees is hard to do. But the opportunity cost of having someone working for you who is consumed by addiction is too great to do nothing about.
