We have an employee who might have a drug addiction problem. She has made off-handed comments that her husband is a crack head and he calls her a meth head. She misses work a lot. Her performance has been suffering. She needs additional money to support her life style.

 What can or can you not say to her to find out if there is a problem. What about termination? How will knowing too much effect terminating the employee and how much is covered under the ADA?

Here are a couple of questions, that when answered will us help give you some advice in this situation:

1.  Does your company have a Drug-Free Workplace policy?  If so, what does it say?  Do you do pre-employment, random, and/or reasonable suspicion testing? 

2.  Other than what you have told us, have you seen anything that has lead you or other supervisors to believe that this ee may be under the influence of drugs while on the job?

Depending on what your policy says and also how (or if) you have handled a situation like this in the past, is going to decide what you will do.  Just because someone has made some comments is not reason to terminate.  If you have a reasonable suspicion policy and you have seen (and at least one other manager) has witnessed behavior that would reasonably be interpretted as this employee being under the influence of drugs at work then I would send her (have someone drive her) to get tested.  What you do if the results come back positive depends on your policy.  There are some companies that will terminate with a positive test result. There are other companies that if the person says "yes I have a problem" during all of this, they will send them to an Employee Assistance Program and put them on a leave of absence.  If the person refuses to go get help with the EAP then they terminate.

You need to address the attendance and performance issues WITHOUT making any assumptions on drug usage. If you make assumptions, that could inadvertently bring this person under ADA when they normally would not be. Discipline her for attendance and performanace and let that lead to her termination. Under ADA, it is the EMPLOYEE's responsibility to broach the topic and accommodations.

From : http://www.eeoc.gov/facts/ada17.html

"Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. The ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, it is not a prohibited pre-employment medical examination and you will not have to show that the administration of the test is job related and consistent with business necessity. The ADA does not encourage, authorize or prohibit drug tests."

 It goes on to say later in the same article:

"Q. Under the ADA, can an employer refuse to hire an individual or fire a current employee who uses drugs illegally?

A. Yes. Individuals who currently use drugs illegally are specifically excluded from the ADA's protections. However, the ADA does not exclude:

• persons who have successfully completed or are currently in a rehabilitation program and are no longer illegally using drugs, and
• persons erroneously regarded as engaging in the illegal use of drugs. "

Forget about the possible drug problem.  It is not your problem. Instead you need to focus on the attendance issue and how her performance has been suffering.  That is your problem.

You need to document what the performance problems are just like you would any other employee.  Set up a Performance Improvement Plan (PIP). Then if the employee fails to improve her attendance/performance issues, you can terminate.

Now, if the employee mentions a drug addition problem when you are setting up a PIP, then you can suggest some ADA accomodations such as time off to get treatment. But even then, the employee's performance needs to improve or they can still be terminated.

What state are you in?  Depending on the state, you could potentially drug test under reasonable suspicion even without a drug free workplace policy and terminate on a positive result.  The worst that can happen is that the individual wins their UI claim assuming that they can't also reasonably claim that they were singled out for some protected reason.

Reasonable suspicion generally stems from physical or behavioral characteristics such as dilated pupils, slurred speech, staggered gait, and very strange behavior.  Reasonable suspicion does not usually stem from odd terms of endearment or anonymous phone calls.  Do you have anything more than this crack/meth head name calling thing going on?  Also keep in mind to get this person drug tested post-accident if they get hurt at work.  You should already be doing that with all employees.

I'm assuming you have the typical handbook language that indicates the Company can do pretty much whatever it wants regardless of what's written in the book.  However, it would be better if you had a drug free workplace policy in place that stipulated the Company's right to conduct drug testing.  State law plays a role also.

LadyAnn and HRforME are right.  Focus on attendance and performance issues and let those lead to termination.

Be sure to document all discussions and PIPs.