As an HR professional have you ever imagined what happens if an employee fails a drug test? No employer is comfortable handling a drug menace with potential job applicants, or even with existing employees. And yet, it is vital that every company has an air-tight policy to deal with this kind of problem.
What happens if an employee or job candidate fails a drug test? This question, and hence its answers, are nowhere close to straightforward. Read on to know more below.
When is a drug test by an employer legal?
Many may be surprised to know that there is no clear answer to this question, as a lot depends on the rules and regulations in the state of employment.
In some states, safety-intensive industries may be required to submit regular drug-test results. This is especially true if employee safety is the foremost concern (like the army). In other cases, it can vary a fair bit between states, and employers must hence consider the following factors:
- Why is the drug-test required at this time/stage? (Like pre-employment screening, promotion to the higher role with security-based responsibility, etc.)
- Is the drug-test applicable to all employees in that state/company?
- Are the results consistently handled across the company, in line with state laws?
Here, a drug-test conducted as part of pre-employment screening is often the most straightforward process legally authorized across US states. However, there are still significant differences across states on what tests can be conducted, and what samples may be used for the same (such as hair, saliva, etc.).
Also, care must be taken by the employer/ company that there is no form of discrimination in handling test results across employees. Also, if a job offer was made to a candidate based on the condition that the candidate passes the subsequent drug test, then the offer can be revoked in line with state regulations.
Different strokes for different folks in different states
As an employer, you might wonder why there are such differences in drug-testing related rules across US states. The simple answer is discrimination, or rather the avoidance of it in any form. (This typically includes discrimination based on gender, race/ color, disability, etc.)
As an example, consider the following positive drug-results, and their resultant impact based on a state’s regulations.
- An employee tests positive for marijuana.
New York City, one of the country’s biggest cities in terms of employers, even provides “employment protection” to cardholders registered with medicinal marijuana prescriptions. (This is covered under disability accommodation laws). As you can imagine, such laws make it challenging for an employer to terminate employment merely based on drug-test results.
- An employee is suspected to be “abusing” prescription medication.
Again, you can imagine the challenges in proving this without a doubt.
In fact, the challenges are eerily similar to marijuana usage while employers may be primarily concerned with safety issues at work. In this case, the employer can create a company-wide policy driven by its safety/security policy that requires a job candidate or employee to inform the employer about their usage of prescription medication.
In addition to what happens if an employee fails a drug test, leading managers and supervisors should be consistently trained to detect “intoxication at work”, especially if it threatens the safety of the employee or their co-workers. Ironically, the subsequent handling of this detection would be anything but simple.
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What employers can do to protect employees against any form of drug-related abuse at work
- First and foremost, a private employer will need to work with HR and legal counsel, in order to develop a consistent company-wide policy. Of course, this may have slight variations if the company employees people across various US states.
- If a drug test is found positive – either for a job candidate or for a current employee – every attempt must be made to avoid discrimination (typically based on gender, race, color, disability, etc.).
- State laws mandate that confidentiality is maintained at all times. This includes strictly governing who has access to a candidate/employee’s results, and how the result is communicated to the candidate/employee.
Finally, use HR/legal counsel to handle positive drug results on a case by case basis, in line with state laws. For instance, in some states, the employer must give the employee sufficient time to contest the results, and prove the subsequent absence of usage through another test. Again, some states may also support the employee through a rehabilitation period. If he or she successfully completes this, the state continues to protect their employment without any adverse action.
In the rare event an employer has irrevocable proof of safety concerns regarding a candidate or employee’s drug results, they must follow state policy to first inform them using a pre-adverse action process. They must also provide them with time to respond before the final decision to terminate employment.
Legal Implications for Failed Marijuana Drug Tests
Recently drug testing policies have become a more complicated issue for businesses to navigate through. Because marijuana is legal in several states but is still illegal on a federal level, this can complicate a company’s enforcement and policy management. Marijuana is categorized as a schedule 1 drug under the Federal Controlled Substances Act. This means that while you have the right to keep your place of employment drug-free according to federal law, however, you may be vulnerable to litigations if the state law has contradicting regulations.
For instance, in Colorado, a set of drug-testing guidelines is being worked upon by state politicians. Meanwhile, Washington DC in 2014 passed a unanimous law limiting employers from testing for drugs until a conditional offer had been made to the applicant.
However, this does not mean you do not have the ability to implement a drug testing policy. You only need to make sure it is done in a way that is compliant by working with experienced Third Party Administrator (TPA)’s for drug testing. This will minimize your organizational risk to legal implications and prevent any public relations issues.