Drug Tests, Pay Deductions, Mandatory Retirement
Q: We have an employee we suspect is under the influence of drugs or alcohol while working. Can we test her for substance abuse?
A: A company that does not have a written policy on unauthorized or illegal drugs and/or alcoholic beverages should not test an employee who is suspected of drug abuse.
In most states, it generally is permissible for private-sector employers to test employees for substance abuse if the employer has a policy of doing so and if the policy has been reviewed by an attorney to ensure compliance with state and federal laws, including the Americans with Disabilities Act, as well as local ordinances and any applicable collective bargaining agreements. Drug testing of public-sector employees is more highly regulated and is subject to federal and constitutional law that limits such testing to situations in which the employer can show a special need.
Private-sector employers generally may select employees for testing randomly, may test before employment commences and may test employees who have been involved in accidents or may train managers to watch for behaviors that indicate substance abuse. These behaviors might include attendance problems, dilated or bloodshot eyes, theft, uncharacteristic complacency or irritability, and changes in hygiene.
A dilemma that employers face in taking action with employees who exhibit such behaviors is that these indicators also might be symptoms of disabilities such as strokes, neurological disorders or mental illnesses that substantially limit major life activities. This makes it difficult for employers to select employees for testing based on behavioral evidence without potentially singling out an employee based on disability.
If an employer wants to implement a policy on unauthorized or illegal drugs and/or alcoholic beverages, the employer should address which employees will be tested, the circumstances under which testing will take place, the substances that will be tested for and the consequences for positive tests. The employer should ensure that the policy is easily accessible to employees by including it in the handbook if one exists, and possibly by posting it in areas such as lunchrooms.
The policy ought to explain how to obtain written consent from the employee on testing, and the consequences if an employee does not grant written consent. In implementing a drug testing policy, an employer should be careful in selecting a qualified testing facility and should set up systems that ensure the confidentiality of test results.
Q: An exempt employee is going to be out for three days for personal reasons. That employee has 2.5 days of paid leave available. Can we pay her for 2.5 days and require her to take half a day of unpaid leave?
A: This question is essentially asking if the employer can take a partial-day deduction from the exempt employees salary.
To answer the question, the employer should consider not only the final rule for defining and delimiting the exemptions for executive, administrative, professional, outside sales and computer employees, but also the comments on partial-day deductions referenced in the final rule. The comments address a number of questions from employers that wanted permission for partial-day deductions.
In its comments, the Department of Labor (DOL) said that partial-day deductions generally are inconsistent with the salary basis test and should be reserved for infractions of safety rules of major significance, for leave under the Family and Medical Leave Act, or for use in the first and last weeks of employment.
The DOL has provided further guidance on a frequently asked questions page, stating that if leave has been exhausted or is not yet available, an employer with a bona fide leave plan might put the employee in a negative leave balance. But no reduction in pay is permitted for a partial-day absence.
The requirement to pay the full days salary to the exempt employee for a partial-day absence is the same for employers without a leave plan, and it applies to the private sector only; there are exclusions for the public sector.
In sum, employers are not permitted to take partial-day deductions from an exempt employee's salary.
Q: Can we set a mandatory retirement age for our employees?
A: Companywide mandatory retirement age policies violate the Age Discrimination in Employment Act (ADEA), except in limited circumstances.
The ADEA, which applies to organizations with 20 or more employees, protects employees age 40 and older from discrimination based on their age. Prior to 1986 the age discrimination law did not protect employees over the age of 70 in the workplace, but due to the 1986 amendment to the Act, this age cap was removed. As a result, all employees over 40 years old generally are covered by the ADEA. Since this change, companies are no longer able to enforce a mandatory retirement age for all employees.
How do we deal with the growing number of older workers and the potential for declining performance in old age? First, do not assume that all employees of a certain age are unable to perform their jobs or will be less productive for the organization. But if an older worker is not performing at the level of expectation, this is a performance issue that should be addressed in accordance with your companys policies and practices.
Allow the employee the opportunity to improve through training and coaching; do not assume the older employee will not or cannot learn and adapt to change.
Voluntary retirement programs also are becoming more common. These programs offer all employees of a certain age within the organization a retirement package above and beyond other guaranteed retirement benefits. Voluntary retirement packages do not violate the ADEA because they provide an option (not a mandate) for the older worker to receive more (not fewer) benefits upon retirement than someone retiring or leaving the company at a younger age. Speak with your legal counsel to discuss other relevant regulations and requirements of voluntary retirement programs.
Note that under the ADEA there is an exception permitting mandatory retirement ages for individuals in a bona fide executive or higher policy-making position. For example, federal law does allow mandatory retirement for a company CEO at age 65 or older under two conditions:
- If the employee has worked in this bona fide executive position for at least two years prior to the retirement date.
- If the individual is immediately awarded annual retirement benefits valued at $44,000 or more.
However, state laws on age discrimination vary and may not include an exception for executives. Check relevant federal, state and local laws prior to implementing any executive mandatory or voluntary retirement policy or program.
Amy Maingault, SPHR, Lisa Orndorff, SPHR, GPHR, and Liz Petersen, SPHR, are information specialists in the Society for Human Resource Managements Information Center.
SHRM chart: Exempt Status Pay Reductions
SHRM web page: HR Knowledge Center
SHRM toolkit: Drug Testing
SHRM white paper: Drug Testing and the ADA
SHRM sample form: Suspected Drug/Alcohol Abuse Behavior Documentation Form
SHRM sample policy: Drug-free Workplace
Web sites: U.S. Department of Labor Employment Standards Administration Final Rule
U.S. Department of Labor Employment Standards Administration Final Regulations Special Provisions Applicable to Employees of Public Agencies