Article

High Times in the Restaurant Business

Restaurant employee substance abuse is hardly a recent topic of conversation in the restaurant industry. Talk to anyone who was tending bar or waiting tables in the 70s and 80s. "It was marijuana and hashish in the 70s," says a woman who paid for college employed as a server during the height of disco. "In the 80s, everyone was using cocaine. It was not unusual for guests to tip their server with a line of coke."

If you're old enough, you will recall these decades when lively casual-themed chain concepts emerged. And they sought outgoing and young staff to appeal to Baby Boomers who were entering their earning years with income and time to spare. The restaurant business encouraged a party culture. And during that time drugs were part of party culture.

Restaurant employee substance abuse is nothing new. What has changed is the patchwork of state laws addressing employee drug use -- including state legalization of recreational and medical marijuana, increased concern over liability, and a new generation of restaurant employees.

Notwithstanding the recent pandemic, this hasn't changed much. What has changed is the patchwork of state laws addressing employee drug use -- including state legalization of recreational and medical marijuana, increased concern over liability, and a new generation of restaurant employees.

In this article, we examine the problem, the legal pitfalls, and the strategies you might use to address employee substance abuse on the job and how to curtail it. We address examples of state law; however, you should confer with legal counsel in your state for up- to-date information to guide your policies and actions.

The Elephant in the Room

"This is always an elephant in the room," says Shawn Walchef, owner of San Diego-based Cali Comfort BBQ, acknowledging, "in the hospitality business, people use all kinds of drugs and substances outside of work."

Walchef, who is in his 30s (around the age of many of his young crew) is quick to note, "I am an alcoholic in recovery." He recalls the days in the restaurant business when general managers would drink with guests, provide free drinks, and get wasted.

In fact, Walchef's early struggles with substance abuse might explain why he believes being direct and forthright with staff are the best tacks. He believes "the authoritarian 'my way or the highway approach" that he learned growing up doesn't work with the current generation of restaurant employees. Walchef doesn't get involved in what his employees do outside of work. (This is likely prudent, as there are state statutory laws that prohibit discrimination against persons for lawful use of lawful products during nonworking hours except for narrow category of employment that likely does not affect hospitality.)

Nevertheless, Walchef says he makes it clear: "On the job we need to take care of our guests," and he emphasizes that to his crew. Walchef believes in rallying cries, not harsh lectures, to impress his crew.

Walchef also describes himself as a sports superfan. No surprise he quotes Coach Eric Taylor, played by actor Kyle Chandler on the television series "Friday Night Lights". Says Walchef: "Clear eyes. Full hearts. We can't lose." He explains, "This is the culture we are trying to build in our concept. Being on our best game, from opening to closing, should be a badge of honor." Wal- chef reminds them anything less "jeopardizes our business and livelihoods."

According to Walchef, his team seems responsive to the message. In the 13 years since he launched Cali Comfort, says Walchef, "we have had very rare instances of problems due to employee substance abuse," even after recreational marijuana became legal in California.

For Walchef, the biggest issue involved drinking alcohol on premises after a shift or off-duty. He now enforces a two-drink limit seated away from the bar.

Employees have invited liability on their employers for off-duty misdeeds, which can involve drinking. In a North Carolina case, Miller v B.H.B. Enterprises, Inc., a restaurant was successfully sued by a guest for injuries caused by an inebriated off-duty restaurant employee.

Regardless of liability, restaurant staff represent the business. While owners cannot restrict their activities off-premises, one may argue they should model responsible behavior on-premises.

If Walchef leans on positive reinforcement to encourage staff to toe the line, he backs up his policy with no-uncertain language in his employee handbook that cautions substance abuse on the job is grounds for termination.

Keep Learning…

A Patchwork of State Laws

Alisa Cleek is a hospitality employment and labor attorney with Atlanta-based law firm Taylor English. "With a majority of states now having legalized marijuana, gone are the days of zero-tolerance drug policies," she says. "Your right to manage your restaurant as a drug-free environment has become more difficult, if not impossible, depending on the state in which you operate."

With the increasing use of marijuana and the trend towards legalizing it, restaurants are left wondering whether they can refuse to hire applicants who test positive for marijuana. They are also concerned whether they still have the ability to terminate employees who test positive for marijuana.

"As the state laws are not uniform, the answer to these questions is going to vary depending on the state in which the restaurant operates, says Cleek, explaining, "In most states, restaurants can still refuse to hire an applicant who tests positive for marijuana. A minority of states, however, have passed laws that prohibit restaurants from doing so."

For instance, in Nevada, an employer cannot fail or refuse to hire an applicant because the applicant "submitted to a screening test and the results of the test indicates the presence of marijuana." The law does not require that the applicant be a marijuana cardholder to be entitled to the protection of the law as marijuana is legal for both medical and recreational use in Nevada.

A new hire also has certain rights during the first 30 days of employment with regard to testing positive for marijuana. During that period, if an employee tests positive for marijuana, the employee has "the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test." The statute, however, does not prohibit an employer from testing an employee after their first 30 days of employment and taking an adverse action if the employee tests positive for marijuana.

The legalization of medical marijuana has also changed the employment landscape regarding marijuana. "In Rhode Island, the state statute does not specifically address this issue, but the Rhode Island Supreme Court held that denying an applicant employment because the employee tested positive for medical marijuana violates the state statute," says Cleek.

The Rhode Island Supreme Court specifically recognized a private right of action for an employee for discrimination on account of their status as a medical marijuana cardholder. "In other words," she adds, "the Court held that as long as the employee is a cardholder, the applicant could not be denied employment based solely on the applicant's inability to pass a pre-employment drug screening. The Court did not recognize similar protection for applicants who use marijuana for recreational use as it is only legal in Rhode Island for medical reasons."

While it would be mind-numbing to read a litany of state law in this space of this article, you should be aware the laws vary from state to state. As noted throughout, you will require specific state legal guidance to draft your drug policy.

Testing, Testing, 1-2-3

Drug testing prospective and current employees is a complex matter, and is regulated by varying state laws. "In most states, employers can still drug test current employees for marijuana, but it is what they do with the drug test results that can get them into hot water," says Cleek. "A minority of the statutes are silent on whether an employer can take an adverse action when an employee tests positive for marijuana. Other statutes specifically allow an adverse action to be taken against employees who are "impaired" or "under the influence" at work or work in safety sensitive positions.

But even those statutes vary as to what rights the employee has to challenge the determination that the employee was impaired. Employers must also consider how the courts have interpreted the state statute which may recognize additional rights for employees.

A minority of state statutes specifically provide that employers may terminate employees for testing positive for marijuana, even if the employee used marijuana off-duty or for medical reasons. To complicate matters, depending on the state, the employer still may have to consider whether it is required to accommodate an employee's use of medical marijuana under other state statutes.

In some states, applicable state statutes specifically provide that employers are permitted to discipline or terminate an employee for testing positive for marijuana if the employee was "impaired" by or "under the influence" of marijuana during work hours. As marijuana can remain in an employee's system weeks after use, determining whether an employee was "impaired" or "under the influence" at the time the employee is tested is problematic.

A drug test result alone, however, is usually not considered sufficient to determine whether an employee was "impaired" or "under the influence" of marijuana. In Arkansas, for instance, the state statute specifically provides that a positive drug test alone is not sufficient grounds to take an adverse action against an employee on the grounds that the employee was impaired.

The results of drug tests can be challenged under state law, as "false positive" results are not unheard of. Also, the employee's confidentiality is protected by some state laws. Disclosing the information to third parties can subject the business to penalties. If the test was a false positive, it could invite a civil action in which the employee or prospective employee can claim defamation.

You can also find yourself on the wrong side of employment laws if you single out a certain group of employees for drug testing based on race, for example. Any policies you do establish should be applied to all employees regardless of age, disability, national origin, race, religion, or sex. Prior to initiating drug testing policies, you should seek guidance from a local employment and labor attorney.

Practical Next Steps for Employers

The days of a drug-free workplace are gone in many of the states that have legalized marijuana. In those states, if employers still want a semi-drug-free workplace, they need to determine what changes need to be made to their anti-drug/drug testing policy. First, employers need to determine whether the state statute and the courts allow an employer to deny applicants employment or dismiss current employees if they test positive for marijuana.

If not permissible, then employers should revise their policy to account for this prohibition or consider no longer testing applicants and employees for marijuana. Next, employers need to consider whether to add a provision in their policy that provides that employees seeking an accommodation for the use of medical marijuana should discuss it with the appropriate person in the organization. Restaurants are wise to have a manager trained regarding how to handle requests for Americans with Disabilities Act (ADA) accommodation.

Even if an employer has to consider an accommodation for medical marijuana, depending on the state, the policy may still include a statement that employees who report to work "under the influence" or "impaired" are subject to discipline under the policy. Employers should keep in mind, however, that some states have drug testing policies that limit an employer's right to discipline an employee for testing positive regardless of whether the employee tested positive for marijuana or some other drug.

Employers need to keep in mind that the law is constantly changing. If you operate in a state that has legalized marijuana and you have an employee or applicant test positive for marijuana or report that they need an accommodation, you should consult with an attorney.

Focusing on Performance

As most employees are "at will", you may fire them for any reason that is not discriminatory under state or federal employment law.

Keep Learning…

Grounds for termination include inadequate performance, including attendance or tardiness, or violation of restaurant policy. In any event, it is risky to fire someone on the spot unless he or she poses a risk to guests or other employees. Experienced managers find stepping back from the situation for a day or two to acquire information and consider the situation can be helpful.

If a front- or back-of-the house employee appears to be unable to perform his or her job due to impairment (other than due to a disability requiring reasonable accommodations under the ADA), then you would be expected to take them off duty. Such would also be the case if it was verified the employee was engaged in illegal activity, such as selling drugs on-premises. That said, as with every negative employment action, you should document the incident and file the report with the manager's signature and the signatures of witnesses, if appropriate (such as an act of violence).

If an employee reeks of alcohol or marijuana on duty, the safest course of action is to privately confront him or her to voice your concern. Acting on suspicion, even if the suspicion seems clearly supported, is risky. Implying the employee is intoxicated in front of other staff members and guests could expose your business to a defamation action. It also can breed mistrust of management. Regardless of what a fellow employee has done, few people like seeing their peers embarrassed or humiliated.

Keep Learning…

Precautionary Hiring Practices

Background checks can help flag employees who are at risk for substance abuse on the job. A past conviction or incident is not necessarily the reason to not hire a prospective staff member, but it does invite inquiry during the interview process. Alcoholism is considered a disability under the ADA. That does not mean an employee is permitted to arrive at work drunk or drink while on the job. However, you might invite an employment discrimination action by refusing to hire a recovering alcoholic based solely on his or her disability.

Moreover, you might be required to provide accommodations, such as permitting the employee to call his or her Alcoholics Anonymous sponsor during a shift occasionally. Twenty states have "ban the box" laws that make it unlawful to summarily refuse to hire an employee based on a history of a felony conviction. On the other hand, you have a responsibility to protect guests and the public, and a duty to perform background checks. Hiring an employee who has a history of impaired driving to drive a catering truck could expose your business to negligent hiring (or negligent retention if the conviction was after the fact).

Everything is O.K. Until It Is Not

As you have read, dealing with employee substance abuse at work is not as clear as we might like it. When you are at work, you should be clear-headed and straight. And it should be that simple. Unfortunately, there are gray areas, particularly in regard to marijuana use that is increasingly prevalent today. In any event, hopefully, this article points out some of the traps for the unwary. The upshot:

• Address the problem head-on with staff during meetings and attempt to impress them of the risks to the business.
• Work with your attorney to create substance abuse policy and procedures. Express them clearly in your employee handbook.
• Employee drug testing is governed by state law. The results are not necessarily grounds for termination, and results should remain confidential.
• When disciplining or terminating employees, base decisions on attendance and job performance, if possible. As long as your actions are not discriminatory or in violation of some aspect of public policy (such as telling employees they will be fired if they "can't get out of" jury duty), you are free to dismiss or terminate an "at-will" employee for any reason. That said, do not allege the employee's substance abuse to third parties. Document all employment decisions with explanations.

---

SAMPLE SUBSTANCE ABUSE POLICY
(Source: International Association of Chiefs of Police, Alexandria, VA.)

Use this substance-abuse policy as a starting point in crafting a policy for your organization. Definitions as used in this policy:

• "Substance" means alcohol or drugs.
• "Alcohol" means ethyl alcohol or ethanol.
• "Drugs" means any substance taken into the body, other than alcohol, which may impair one's mental faculties and/or physical performance.
• "Employee" means all persons who work full time, part-time, or under contract for a company, including management staff.

One of the greatest problems facing our society today is the abuse of drugs and alcohol. The nationwide impact of substance abuse in the workplace is now estimated to exceed $30 billion annually. This staggering amount only measures lost productivity and quality; it does not put a dollar value on personal pain and suffering.

The management of our company is vitally concerned about the well-being of its employees, our most valuable asset. We are equally concerned that our company's hard-earned reputation and positive image not be compromised in any way.

Alcohol and drug abuse have an adverse effect on job performance, create dangerous situations, and serve to undermine our customers' and the community's confidence in our company.

Our company cannot and will not condone drug or alcohol abuse on the part of its employees, nor will it condone any employee behavior on or off the job that may serve to damage the company's reputation. Our policy concerning drug and alcohol use and abuse is as follows:

1. The company will not hire anyone who is known to currently abuse substances.
2. The company will educate and inform its employees about the health consequences of drug and alcohol abuse.
3. Employees must report to work in a fit condition to perform their duties. Being under the influence of drugs or alcohol is not acceptable.
4. Any employee on company business, on or off company premises, is prohibited from purchasing, transferring, using or possessing illicit drugs or using alcohol or prescription drugs in any way that is illegal.
5. Employees will not be terminated for voluntarily seeking assistance for a substance abuse problem; however, continued performance, attendance or behavioral problems may result in loss of a job.
6. Employees on physician-prescribed medication must notify a designated company official if there's likelihood that such medication could affect job performance and safety.
7. Employees engaged in off-the-job drug or alcohol involvement may be considered to be in violation of the company substance abuse policy.
8. Where available evidence warrants, the company will bring matters of illegal drug or alcohol use to the attention of appropriate law enforcement authorities.

---

ON THE FORUM…



Enter the search term "drugs" in the RestaurantOwner.com Discussion Forum and you will get an eyeful. Does any of this look familiar?

"Server been with us 10+ years. She is running a side business from her home selling marijuana (illegal in my state). The past couple of shifts her "friends" are showing up at my restaurant to "see her." She has also brought a large bag (not a purse) to stow during the shift. Should I fire? Warn in writing? Search the bag, because it may be illegal content? Ban the friends and ban the bag, and keep her working?"

"So, my husband and I, while out of town (of course), found out that one of our employees was recently arrested for possession of copious amounts of marijuana (with intent to sell) along with also having in his possession $10,000 in cash (profits of his drug dealing). My husband and I were suspicious of this behavior, seeing as he was being paid very little but somehow was able to afford very much. However, while he was at work, he never showed any signs of drug use, and thus, our hands were tied. We had our suspicions, and yes, they were eventually right, but we couldn't do anything at the time."

"I terminated an employee who I suspected was using drugs. Grounds for termination was job performance. What is the best way to document this termination for the unemployment folks?"

"I recently fired a cook for actively smoking marijuana on the job. He went outside loaded up a bowl, and smoked it up. He was witnessed by a neighboring business, and two of my staff. When I asked him if he did it, he acknowledged he did. I asked if he remembered signing an employee handbook that advised him that any use of illegal drugs or alcohol on the job would (not may) result in termination. He did and filed for unemployment. The reason he stated he was fired was for violation of company policy. I filled out the form and sent it back with a detailed rationale and documentation. Last week I got a call from the state employment department asking for a copy of my employee handbook. They were concerned because I hadn't specifically stated the illegal drugs that were grounds for termination. I countered with all illegal drugs because they are illegal. She explained that I needed to define which specific drugs were illegal because it's possible that because we neighbor a state in which marijuana is legal, the employee didn't realize it wasn't okay. I explained that everyone knows marijuana is not legal. That is why you cannot purchase it at places like [the supermarket]. I was advised that as an employer, I 'cannot assume that the employee has culpability if they are ignorant of the law'. Now, I get to spend another hour or so on a phone hearing disputing his unemployment - which he was awarded. To be clear, I don't care what my employees do on their off time- but this guy didn't even bother to clock out for his high."

"I've learned that one of my servers may have been drunk in the middle of the shift - and was drinking alcoholic drinks left on tables. I don't doubt that, if true (and I believe it is), that this person has a larger problem. That said, he hasn't said a word about having a problem or needing any type of accommodation. I'm not looking for information on how to handle an alcoholic at work."

"I know people who do this probably aren't going to stop. In fact, there are a couple of bartenders that we've had to talk to about playing mixology and drinking "mistakes". That has been addressed (let's hope also documented by the manager). The policy is open-ended, per our attorney, with penalties up to and including termination of employment. Other than cutting corners on some things, he generally is a good employee, certainly no better or worse than most. What would you do (other than talking to the shift supervisor to ask why he wasn't sent home)?"

"I don't know much about your experience in the restaurant industry, but if I had drug test at my restaurant, I would lose 60% of my staff. I have a strict policy of no drugs on property or being high while at work. Unfortunately, the restaurant industry requires a different breed of workers. We are an upscale restaurant that needs employees that are English-speaking adults, cooking skills, etc. With that, comes the "Restaurant Renegades" as I call them. Anyone with similar situations?"

Keep Learning…


The RestaurantOwner.com Discussion Forum

As a member of RestaurantOwner.com you'll be part of a thriving community of independent operators just like you who are serious about improving their business.

Our lively and robust, Member's Only Discussion Forum is open 24/7. The Forum is monitored by our contributors and advisors as well as hundreds of other independent operators. Some of the best independent operators in the world regularly visit our forum and contribute incredible advice. Since only our members have access to the Discussion Forum, you can be assured of lively, thought-provoking discussions and feedback to your specific questions without worry of solicitation or ridicule.

https://www.restaurantowner.com/public/Restaurant-Discussion-Forum.cfm