Q&A Session


Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.


How should a federal supervisor handle a situation where an employee has voluntarily confessed substance abuse to the supervisor? Should the supervisor send the employee to an employee assistance program (EAP), talk to human relations staff, or report the employee to security staff?

A: Substance Abusing Subordinates

A supervisor who suspects substance abuse, or who has an employee confess substance abuse, has a particular challenge.  First, the supervisor should be aware that current substance abuse, whether it is alcohol or illegal drugs, does not, in and of itself, make the employee disabled.  Thus, the employee is not entitled to special treatment because of their current problem, even if the substance abuse problem is considered an illness.  Also, substance abuse does not excuse or mitigate poor performance.

Second, much of substance abuse concerns illegal drugs.  The supervisor is therefore dealing with potential criminal behavior that could be disqualifying for federal employment, particularly if a security clearance is required for the job in question.

Drug testing, which occurs in some agencies randomly, is certainly an option, but the manager should first check with the General Counsel’s office to make sure it is authorized in your particular circumstances.

Finally, the supervisor with the substance abusing subordinate should immediately notify HR and determine what follow up is necessary.  EAP and security are definite considerations.  Protecting employee confidences or confessions of a problem are secondary to the EAP referral, protecting the employee and others and getting the job done.

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About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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