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What happens when an employee fails a drug test?

Know all rights and responsibilities involved in a failed employee drug test.

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What happens when an employee fails a drug test?

The entire reason for workplace drug screening is to prevent drug abusers from joining a company payroll. However, what actually happens when a drug test comes up as positive?

When in doubt, employers should always consult with a lawyer for legal advice. Every state has different laws, and certain industries have certain regulatory requirements. This post will give a general overview, but do not consider it legal advice.

To start, determine if the industry has any regulations regarding employee drug abuse. This generally applies to healthcare companies, safety sensitive transportation providers, and employees of the federal government and businesses contracted by the federal government. In these situations, there are clear laws that prohibit employers from hiring a drug abuser. While some may have to terminate the employee completely, others will offer the employee an EAP (employee assistance program) where they can rehabilitate themselves. If the business does not have these regulatory oversights, then state and local laws might still dictate the next step.

New York State for example does not have any guidelines regarding employment drug testing. The employer is free to drug test pre-employment, post incident, random, and annually. In addition, the employer also has the right to terminate employees who fail these drug tests. California on the other hand requires an individual to be given a formal job offer before drug testing the applicant. The business is also restricted to testing current employees only under “reasonable suspicion”.

If the industry’s regulators do not have any specified clause regarding employee drug abuse, and if the state local laws do not offer a guideline, then employers are generally free to choose the best option for the business.

Termination
For businesses with a zero-tolerance drug-free policy, this is the most appropriate action. Maintaining a drug free workplace is important for business growth, and consistent actions help enforce the company’s policy.

Employee Assistance Program (EAP)
An EAP may be an option if the employer wishes to offer the employee a second chance. With an EAP program, the employee is required to attend an assistance program to help curb their substance abuse problem. Upon completion of the EAP, the employer may then bring the employee back to the workplace. Some employers such as the federal government require an EAP for any positive drug test. An administrative leave can be done with or without an EAP.

Workplace Probation
Sometimes the employer knows the employee best, and is able to manage the employee’s substance abuse themselves. This would generally involve placing the employee in a supervised position, additional testing, and withholding certain privileges during the probation period. Make sure to check with a lawyer before withholding any benefits or salary during this time.

Employers can get creative while reviewing their options for dealing with positive drug tests. Overall, the first step is to consult with a lawyer to learn your rights and your employee’s rights as well. The most important part to remember is to always be consistent. If employees realize that different consequences are happening to different employees, the business may be liable to discriminatory lawsuits.