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You decided to screen workers for drug use because you want to maintain a safe and productive workplace. But what should you do when workers flunk the test? Should employees be fired, given another chance or referred to an employee assistance program? Employment attorneys say consistency is the key.

"Employers should have strong policies in place addressing whether or under what circumstances they will engage in dialogue with an employee or applicant who fails a drug test," said Jill Vorobiev, an attorney with Reed Smith in Chicago. Policies also should take into account any state laws that may apply to failed drug tests and whether the employer might need to make reasonable accommodations for workers with disabilities, she said.

With the increasing number of states that have legalized medical or recreational marijuana, employers will need to review those laws before making employment decisions based on failed drug tests. Note that some industries, safety-sensitive jobs and federal contractors must comply with federal drug-testing rules that dictate the steps employers must take and are generally excluded from state law limits on drug testing.

Here are some steps employers should consider taking to ensure they respond consistently when employees don't pass a drug screen.

Include a Medical Review Process

Drug-testing rules can be complicated because they may require medical knowledge and an understanding of applicable federal, state and local laws.

Furthermore, employees may have excuses for failing a drug test: they ate too many poppy-seed bagels, accidently picked up the wrong brownie at a party or were stuck in a car with someone who was smoking weed. Perhaps they'll argue that the test is wrong. Employers need to consider how they'll handle these situations. 

"I recommend employers use third-party drug-testing facilities with a medical review officer," said Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich. "The medical review officers generally know if job applicants or employees are not being truthful, because the tests themselves already account for poppy-seed bagels, secondhand smoke intake and the like."

Dr. Todd Simo, chief medical officer at employment background screening firm HireRight, said the medical review process helps protect employee privacy by giving workers an opportunity to provide a reasonable, verifiable and legal medical explanation for a failed test. If the worker has an acceptable explanation for the result, the drug screen is reported to the employer as a negative test result, the same as it is reported if no drugs were found.

drug testing swab The number of workers who tested positive for drug use reached a 14-year high in 2018, and marijuana topped the list of most commonly detected illegal substances, according to drug-screening company Quest Diagnostics.

Determine What Steps to Take

State laws vary regarding the steps employers must take after an employee fails a drug test. Pre-employment screening can be more straightforward than random and post-accident screening and tests based on reasonable suspicion.

If an employer makes a job offer contingent on passing a drug test, the offer can generally be rescinded if the applicant fails, but there may be more steps that employers must follow for current employees. For example, in Vermont and Minnesota, an employer can't fire someone for the first failed drug test if the employee agrees to complete a rehabilitation program.  

Some states also require employers to provide certain notices to workers when an adverse action will be taken based on a failed drug test. In some locations, the employee must be given the opportunity to contest the results and retest.

In states where marijuana is legal, employers may need to follow specific guidelines before making an adverse employment decision. For example, in Illinois, employees must be given the opportunity to challenge the results of the test. "This is likely because drug tests for marijuana are still imperfect and detect use from days and weeks prior," Welch noted.

Under federal law, employers may need to follow Fair Credit Reporting Act notice requirements if they use a background-check company to obtain the results from a drug testing lab.

Reasonable Accommodation

Employers don't have to accommodate on-the-job impairment from marijuana or prescribed drugs, but off-duty use may be protected, depending on the employee's location, circumstances and job.

An employer may be required to engage in an interactive dialogue with a worker to see if a reasonable accommodation can be made. "It depends on a number of factors," Vorobiev said. Imagine the employee or job applicant is a registered medical marijuana patient in a state that allows cannabis use to treat a disability. The employer may need to explore possible accommodations.  

The employer doesn't necessarily have to approve the precise accommodation that the employee seeks, said Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles. But engaging in an interactive dialogue "shows that the employer is mindful of the issues and might go a long way in preventing unwanted litigation," she explained.

In most lawsuits that have been resolved against the business, the court noted the employer's failure to engage in any dialogue whatsoever.

Under federal and state laws, an employer may be required to engage in an interactive process with a worker who uses prescription drugs.

"Employers may consider stating in their policies that they will engage in a reasonable accommodation process where legal marijuana or prescribed drugs are at issue," Vorobiev suggested.

Disciplinary Action

Should employers fire or refuse to hire workers if a reasonable accommodation can't be made? "It depends on whether or not they want to maintain a policy of refusing to hire or employ individuals who test positive for illegal drugs," Welch said.

Some companies have stopped testing for marijuana or ignore initial positive tests when the employee's job is not safety-sensitive, she noted.

Employers should have a comprehensive drug-free-workplace policy and drug-testing procedures that are followed consistently in all circumstances, said David Morrison, an attorney with Goldberg Kohn in Chicago, because employers that inconstantly apply drug-testing procedures may be sued for discrimination. 

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