Complexity At Its Best

Your organization has a Drug Free Workplace Policy. A supervisor suspects an employee may be using illegal drugs. She begins to investigate. Based on the results of the investigation, you will either clear the employee and determine that the allegations were without merit or you will have evidence to support the allegations and recommend appropriate discipline. Couldn't get any more straightforward than that, could it?

Right now, all of my HR practitioners and employment law attorneys are out there are stirring in their seats, beginning to feel their blood pressure rise and heart beat a little faster, as they reach for their company policy with one hand and their ADA/Rehabilitation Act folder with the other while  scanning their shelves across the room for their well tabbed  EEO book.  

Back to the drug investigation. You are finishing up your investigation and the evidence is not in the employee's favor. There is a knock at your door. The employee in question comes to your office and voluntarily identifies himself as a user of illegal drugs. Gotcha!

Now what do you do? In my organization, we acknowledge the identification. We consider the facts and make a safe harbor determination. Safe harbor essentially says that the organization will not initiate disciplinary action against an employee who voluntarily identifies him/herself as a user of illegal drugs prior to being identified through other means. Other means is defined as direct observation, evidence obtained from an arrest or criminal conviction or a verified position test result. Once the voluntary self identification is made, the employee must obtain counseling or rehabilitation through an Employee Assistance Program and refrain from using illegal drugs. In essence, you may not proceed with discipline, regardless of the evidence obtained, if all of the safe harbor criteria are met.

"If x than y" is one of my more commonly used formulas in Excel. If HR decisions were that straightforward, we'd all be sitting pretty. And bored out of our minds. HR is complex, HR is robust and HR is not for the weary. You have got to be on your toes, well read, and able to connect the dots. You must be able to identify the exceptions and know where to look for the bumps in the road.

As good as you are, this knock at the door was not a surprise. You were expecting it.  If it wasn't a safe harbor determination in response to an allegation of drug use, it would be a request for reasonable accommodation in response to a proposed performance based removal, allegations of hostile work environment in response to a less than satisfactory performance review or the unforgiving FMLA, ADA, EEO triangle. This list can goes on and on. You love this stuff. You thrive on it.

HR. Complexity at its best!