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Workplace drug testing: What you should do when an employee fails

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You may have decided to drug test your employees because you desire to have a productive and safe workplace. But it can be tricky to figure out what to do next when your employee fails a drug test. The only options available for you are to fire an employee, give them another chance, or refer the worker to an employee assistance program. 

Keep in mind that an employer needs to have good policies in place so that you can know under what circumstances you can have a dialogue with a job applicant or worker who fails a drug test. Besides, you also need to consider any state laws that apply. There are also some safety-sensitive jobs that need to comply with federal laws when it comes to employee drug testing. This post discusses what you can do when an employee fails a drug test. 

A medical review process

You should note that drug-testing rules can usually be complicated as they may need medical knowledge as well as an understanding of applicable state, federal, and local laws. Also, employees can have some excuses for their drug-test failure, such as they were in a vehicle when their friend was using drugs. In some cases, they can even claim that the drug test is wrong. Therefore, you must consider the best way you can handle such situations.

It’s a good idea to utilize third-party drug testing facilities that have a medical review officer. A medical review officer usually knows if a job applicant or employee is being truthful because the drug test itself already accounts for second-hand smoke intake.

The medical review process also assists to protect worker privacy by giving them the chance to give a verifiable, acceptable, and reasonable explanation for the drug-test result. A positive drug test result can be reported to the employer just like a negative test result. 

Determine what steps you need to take

State laws tend to vary regarding the steps an employer needs to take after a worker fails a drug test. It can be more straightforward with pre-employment screening than post-accident and random screening as well as tests that are based on reasonable suspicion.

When an employer includes a job offer element on passing a drug test, they can rescind the offer if the job applicant fails the test. But there can sometimes be more steps that you need to follow for the current employees. For instance, in some states, an employer cannot dismiss an employee for the initial failed drug test, especially if the worker submits to a rehabilitation program.

And, some states may also require employers to give certain notices to employees if an adverse action has to be taken based on a drug-test failure. In some places, the worker needs to be given the chance to contest the drug test results and can request for a retest. 

Keep in mind that in states that legalized marijuana, an employer needs to follow certain guidelines before they make any adverse employment decision. For instance, in some states, the employee is given the chance to challenge the drug-test results. This is because marijuana drug tests are still not perfect and may detect use days or weeks prior. Under federal law, an employer has to follow the requirements of the Fair Credit Reporting Act when they decide to utilize a background-check company to get the results from drug testing laboratories.

Reasonable accommodation

An employer doesn’t need to accommodate on-the-job impairment from prescribed drugs or marijuana, but off-duty use can be protected, though this can depend on the location and circumstances of the employee.

An employer may need to engage in interactive dialogues with an employee to determine whether or not a reasonable accommodation can be suitable. But this usually depends on various factors. The job applicant or employee can be a registered medical marijuana user in a state that allows its use to treat a disability. In such cases, you have to explore various accommodation options. 

You don’t necessarily need to approve the right accommodation that the worker wants. But when you engage in an interactive dialogue, you can demonstrate that you are mindful of the problems and may do anything to prevent unwanted litigation. 

There is evidence that in most lawsuits that were resolved against companies, the courts found that it was the failure of employers to engage in any dialogue. Under state and federal laws, an employer may need to engage in interactive processes with an employee who uses prescription drugs. You need to include in your drug-free policy that you will be involved in a reasonable accommodation process, especially if prescribed drugs or legal marijuana are of concern.

Disciplinary action 

If you cannot make a reasonable accommodation, then you can decide to fire or even refuse to hire employees. But this usually depends on whether or not you want to retain a policy of refusing to employ or hire job applicants who test positive for illicit drugs. There are some companies out there that ignore initial positive tests or stop testing for marijuana when the job of an employee is not safety-sensitive.

You need to have a detailed drug-free workplace policy and testing procedure that you should follow consistently in all situations. This is because an employee can decide to sue you for discrimination if you inconstantly apply drug-testing procedures.

Ideally, you need to offer a safe work environment and make sure that all your employees are productive. In most cases, it’s worth it to maintain a drug-testing program to achieve these goals. But this can sometimes depend on your workplace. You may have to consider the business needs besides any applicable state and federal laws.

If you hire drivers or are a federal contractor and need to follow certain drug-free workplace laws, then make sure that you have the right drug-free policy. Unfortunately, some employers struggle to find talented employees or desire to maintain a specific culture and believe that drug testing, especially for marijuana can hinder their chances of attracting and retaining qualified employees. But you need to value risk mitigation, so it’s crucial to have a drug-free workplace program. Drug testing can prevent health issues, accidents, litigation, and absenteeism.

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