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Failed Drug Test: Options For Employers

A failed drug test can be a stressful experience for both employers and employees. Substance abuse problems are common in the United States – in fact, an estimated 70% of substance abusers are currently employed. If regular drug testing is part of your company’s policy, you need to have a plan in place to determine what actions to take in light of a failed drug test.

Regulations regarding how an employer can respond vary greatly on a state-by-state basis, and there is also the issue of ethics. Employers may struggle to balance approaching substance abuse with compassion and maintaining a safe, drug-free workspace.

A failed drug test is a difficult situation that should always be treated with appropriate sensitivity. Below, we will provide some guidance on determining what consequences to take in the event an employee fails a drug test.

The Legality Of Employee Drug Testing

The legality of employee drug testing is ever-changing and incredibly complex. This is why it is recommended employers work with a third party to ensure compliance with federal and state law.

Laws vary greatly depending on your area and even in your industry. Some industries require regular drug testing and have specific steps employers must take in the event of positive drug test results. The Department of Transportation (DOT), for example, requires regular drug testing for employees in certain safety-sensitive positions (you can find a full list of those positions here). If an employee fails a drug test, the DOT requires that employers immediately remove them from the job. This does not necessarily mean termination, but there are specific guidelines regarding when an employee can return to work. (More on that below.)

In some cases, the law restricts how you can respond to a failed drug test. Under the Fair Credit Reporting Act (FRCA), you must provide a candidate with a pre-and-final adverse action notice if you decide to terminate them based on a failed drug test. In some states, however, you may not be allowed to automatically terminate an employee who failed a drug test.

In Vermont and Minnesota, for example, you cannot fire someone for failing a drug test if they agree to enter a rehabilitation program. Other states have rigid requirements regarding notifying employees of positive results. You may have to give written notice within a certain timeframe and also give the employee an opportunity to contest the results.

Depending on the circumstances, drug use can sometimes be considered a disability under the Americans with Disabilities Act. This further complicates matters legally. In California, private sector employers with more than 25 employees must reasonably accommodate individuals with substance abuse issues. This may mean you cannot terminate an employee without giving them the opportunity to seek treatment. 

In some situations, there are less legal restrictions at play. In the case of a drug-related accident at work, you have legal grounds to terminate an employee. However, always check guidelines in your area first.

Not only are guidelines complicated, they change frequently. At PeopleG2, we walk our clients through the legality of drug testing and consequences. Reach out here to learn more.

What Should I Do If An Employee Fails A Drug Test?

First and foremost, check your company’s drug policy. If you do not have a written policy in place that clearly outlines the consequences of failing a drug test, prioritize drafting a policy right away.

When it comes to informing an employee, make sure you know the legal requirements in your area (i.e., bringing in written notice of a failed test). Always have the conversation in a private office and remember to breach the topic with sensitivity. Review any substance abuse policies with the employee to ensure consequences are completely transparent. Make sure to obtain written documentation of your conversation.

The majority of employers want to avoid immediate termination for a failed drug test, especially for valued employees who have been with the company for many years. Many companies implement options like three strike policies and give employees a chance to retake mandatory drug tests after a set period. Other employees offer what are called Employee Assistance Programs (EAPs).

EAPs prioritize treatment over termination. Programs are led by counselors with advanced training in substance abuse assessment and care. Employers can provide guidelines regarding the circumstances under which an employee can return to work after completing an EAP.

For safety-sensitive positions that fall under Department of Transportation regulations, you must implement the following guidelines:

  • Immediately remove the employee from safety-sensitive duties
  • The employee must successfully complete the evaluation and rehabilitation process before returning to work
  • After a follow-up evaluation, a Substance Abuse Professional (SAP) must issue written documentation of the employee’s compliance with treatment
  • The employee must pass a drug test prior to returning to work.

These guidelines are not required for positions outside of DOT regulations, but can serve as a model for employees who prefer treatment over termination.

Consequences For A Failed Drug Test: The Bottom Line

If an employee is under the influence of drugs and alcohol at work, this can be a serious liability for your company – especially in the case of safety-sensitive positions. In the event an employee tests positive for any number of illegal narcotics, review your company’s drug policy and regulations in your area before taking action.

A failed drug test does not always mean termination. In many cases, employees are able to successfully recover from substance abuse problems when granted second chances.

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