First of all, I commend you for having your employee’s best interests in mind. It’s really frustrating when the laws designed to protect employees get in the way of employers who want only to do the right thing to help their employees. But enough with the venting and let’s see if we can figure this thing out.
To start, let’s break down the issues:
KEEPING THE EMPLOYEE FROM DRIVING: You have authority–and responsibility–to stop the employee from driving to the extent he’s driving a company vehicle and/or performing job-related functions. But your rights and responsibilities to regulate his driving to and from work and while he’s off-duty is far more problematic, especially if he isn’t driving a company car. This is private, personal conduct engaged in off-duty. And it just so happens we did an extensive analysis of this issue a couple of weeks ago. Even though the premise is discipline for off-duty conduct, the same principles re: delineation of authority apply to your situation and you should give it a read. https://ohsinsider.com/termination-for-off-duty-conduct-the-10-things-hr-directors-need-to-know/
ENSURING THE EMPLOYEE ISN’T IMPAIRED AT WORK: As an employer, you have every right to insist that employees come to work fit for duty and refrain from using any substances that may impair their work performance–including legal prescription drugs. This is especially true if the employee performs a safety-sensitive job, e.g., involving operation of heavy equipment, directing traffic, etc. Hopefully, your policy makes this clear.
DISCIPLINE vs. NON-DISCIPLINARY: Okay, let’s talk about what you can and can’t actually do to deal with the impairment situation. Based on recent cases and best practices, I generally advise employers to do what it sounds like you’re doing now, namely, treat the problem not as a matter of discipline but getting the employee help for a problem. You can and should talk to your employee directly–but in a highly sensitive and diplomatic way. Let him know you’re on his side and that you’re trying to be constructive not punitive. Acknowledge that this is private business but also that it affects his work. Go through the observations you relay in your Q. And ask him what you can do to help.
DOCTOR: During your conversation, ask for permission to talk to his doctor. Reassure him that you’re seeking not personal medical files but information about what you can do to help him. DO NOT, I repeat, DO NOT go over the employee’s head if he denies you permission to speak to his doctor. If you do, you’ll be exposing yourself to liability for a privacy violation. Ditto for the employee’s family members and friends. You can’t talk to them unless: a. the employee consents; or b. they come to you.
Keep careful records documenting all the actions you take, not only as a legal CYA but to create a case record that you can go back to later to get the best outcome for both of your sake’s.
Final point: This is just personal guidance, not legal advice. If it comes down to discipline, termination or other decision about the employee’s employment, go to a lawyer for legal counsel.
Hope this helps and sorry to go on so long but, as you well recognize, this is highly sensitive and delicate stuff. Glenn, glennd@bongarde.com, 203 354-4532
