Reasonable Suspicion Checklist for DOT-Regulated Employers

Reasonable Suspicion Testing checklists are incredibly valuable for employers and their supervisors to document particularly out-of-the-ordinary behavior and observations in order to determine whether to refer an employee for drug or alcohol testing.

In the United States of America (U.S.), reasonable suspicion drug and alcohol testing is commonly used by employers when there are reasonable grounds for suspecting that an employee has been using drugs or alcohol at work or in connection with her duties. This determination must be based on specific, contemporaneous observations about the employee's speech, behavior, body odor, and overall appearance. These observations must be documented in order to be actionable under most drug-free workplace policies.

Reasonable Ssuspicion testing balances an employer's right to a safe and productive workplace through a drug and alcohol free workplace environment with an employee's right to privacy and to be free from harassment or discrimination.

Employers who test without sufficient evidence and documentation of a tested employee's suspicion of drug and alcohol use may be subject to a variety of legal challenges in unemployment cases, workers' compensation, and invasion of privacy claims in court. Claims include, but are not limited to: wrongful termination, wrongful denial of workers' compensation claims, and intrusion upon seclusion.

Employers who do not have a drug-free workplace program or fail to enforce its drug-free workplace program through adequate reasonable suspicion testing may be subject to civil liability claims in tort such as, but not limited to: negligence or wrongful death. These claims arise out of a failure to prevent the reasonably foreseeable consequences of keeping an employee suspected to be under the influence of drugs or alcohol on the job and in a safety-sensitive position.

Common discovery requests in either of these types of scenarios include training records on supervisors making reasonable suspicion determinations (proof that they took an appropriate DOT Reasonable Suspicion Training for Supervisors Course or Non-DOT Supervisor Reasonable Suspicion Training Course) and documentation of the observations that gave rise to (or didn't, as the case may be) the determination to test an employee for drugs or alcohol. 

Employers may see reasonable suspicion drug testing as simply a way to protect their employees, but, when done correctly it is also an excellent opportunity to create a safer and more productive workplace overall and to help prevent, or at the very least, help the odds of winning costly litigation.

Employers often use reasonable suspicion drug testing to detect possible drug use in their workplaces. To use reasonable suspicion to perform drug testing, management must prove their reasonable belief that drugs could have caused the observed behavior.

Reasonable suspicion drug and alcohol testing meets the same guidelines as reasonable cause drug testing; however, reasonable suspicion drug testing does not require management to know any specific incident that caused them reasonable concern. Instead, it is a belief or assumption about certain actions, behaviors, or occurrences which causes the reasonable belief that drug use may have occurred due to these events’ circumstances.

To conduct reasonable suspicion tests, an employer must first establish a written policy regarding employee substance abuse. This reasonable suspicion drug testing policy must comply with the company’s work rules, collective bargaining agreements, and all applicable federal, state, and local laws.

Employers should ensure that reasonable suspicion does not occur simply because an employee is from a certain racial or ethnic group or lives in a high-crime neighborhood. Management should avoid using broad classifications based on stereotypes or preconceived notions when conducting reasonable suspicion testing. Because reasonable suspicion drug tests are not meant to be punitive (they are merely considered investigative), they should only be conducted when there is reasonable cause to believe an employee is under the influence of drugs or alcohol at work.

The following is an example of a reasonable suspicion checklist:

• What are the nature of the events which made you believe there were reasonable grounds for reasonable suspicion?
• If you were reasonably suspicious of drug usage, why do you suspect drugs to be the cause? Are there any other reasonable factors that could have caused the observed behavior?
• What was the employee’s demeanor or attitude when they were confronted with your reasonable suspicion? Were they nervous, fidgety, angry, and defensive, or calm and cooperative? Did the employee appear impaired in any way (slurred speech, poor balance, lack of coordination)?
• What sort of information did you receive from other employees about the employee’s appearance or behavior that caused reasonable suspicion? Were there any witnesses to the event which made reasonable suspicion necessary?
• What was your gut feeling at the time when you became reasonably suspicious of drug use by this employee? Did you feel an immediate uneasiness, or was it a gradual process that took time?

In some cases, reasonable suspicion drug testing must be reasonable cause drug testing. For example, if a police officer pulled someone over for speeding, the driver could refuse reasonable suspicion tests (blood alcohol test or field sobriety test). In this scenario, reasonable suspicion drug testing would have to become reasonable cause drug testing because there is no consent.

Employers who require their employees to drive on company business will need a drug and alcohol policy that complies with federal guidelines, and employees who work in fields involving vehicles such as truckers, pilots, forklift operators, etc., all need reasonable suspicion alcohol drug policies in place without exception to comply with Federal Department of Transportation regulations.

Random reasonable suspicion drug testing should be done at reasonable times, such as when an employee’s job performance starts to deteriorate and productivity suffers. This is the best time to conduct reasonable suspicion drug testing.

Once reasonable suspicion drug testing has been conducted, management should continue monitoring the employee in question until reasonable suspicion drug testing can be done. This is a reasonable measure for both parties’ protection if there was an incorrect assumption and the reasonable suspicion was unjustified. Random reasonable suspicion tests should also not be utilized as a “penalty” for poor performance or misconduct if reasonable cause cannot be established after reasonable suspicion alcohol/drug use has been investigated thoroughly.

The following are warning signs that your company may need effective alcohol and drug policy:

• Are employees reporting to work impaired?
• Is there excessive absenteeism on Mondays or Fridays?
• Employees appearing under the influence of drugs or alcohol at work?
• Accidents due to impairment?
• Violent behavior associated with drug and alcohol use in the workplace?
• Drug paraphernalia found in restrooms?
• Trashed hotel rooms when employees are on out-of-town business?
• Drugs or alcohol being sold to other employees (and customers)?

The above are just a few examples of reasonable suspicion drug testing that employers can conduct. When reasonable suspicion drug and alcohol policies have been put in place by an employer, it is wise to include the following to protect your company from potential lawsuits:

• What reasonable suspicion constitutes
• How reasonable suspicion will be recorded and documented in writing
• Why reasonable suspicion is necessary and reasonable grounds for doing so
• how reasonable suspicion will be addressed if no illegal activity was found (such as notification of employee’s supervisor)
• What constitutes reasonable cause for reasonable belief alcohol/drug use, including consequences with repeated failures or refusal to submit to tests

Keep in mind that each state has its own laws regarding alcohol drug testing, including when permissible. Only reasonable cause reasonable suspicion alcohol drug testing in the workplace is legal in all states.

If reasonable alcohol drug reasonable suspicion testing has led to a reasonable belief that an employee was impaired on or off the job, reasonable cause reasonable suspicion alcohol/drug use will be required for formal action to prove this. This should include a policy of disciplinary action up to and including termination of employment for violations of reasonable cause reasonable suspicion drug/alcohol use policies and procedures.

If reasonable suspicion drug testing is conducted in your organization, all reasonable steps should be taken to ensure that the level of reasonable suspicion they are conducting reasonable suspicion drug tests for is accurate.’

Reasonable suspicion alcohol/drug testing should not be used as a means to coerce an employee into falsifying their reasonable belief alcohol/drug test results. To conduct proper reasonable suspicion drug tests, managers and supervisors must learn to recognize reasonable cause behavior associated with drugs and alcohol through reasonable suspicion training, which should be included in any drug-free workplace and employment policy.