An Employee Failed a Drug Test. Now What?

Employers conduct drug tests to screen out potential new hires who use illicit drugs and to deter current staff from abusing drugs and creating safety risks in the workplace. So what should employers do when a job applicant or current employee fails a drug test?

The answer may depend on the industry, state law and company policy, said Dale Deitchler, an attorney with Littler in Minneapolis.

Some industries, safety-sensitive jobs and federal contractors must comply with federal drug-testing rules that dictate the steps employers must take after an employee fails a drug screen. However, for the most part, private employers will need to turn to state law. Employers have to be aware of the specific drug-testing laws in each state where they operate because these laws vary widely, said Tae Phillips, an attorney with Ogletree Deakins in Birmingham, Ala.

For example, he said, there may be restrictions on what types of tests can be administered—such as pre-employment, random or reasonable suspicion tests—and what specimens can be tested, such as hair, saliva or urine.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

Steps to Take

There are also state-law differences regarding the steps employees must take when someone fails a drug test. Pre-employment screening can be more straightforward than screening for existing staff, Phillips said. If an employer makes a job offer contingent on passing a drug test, the offer can generally be rescinded if the applicant tests positive.

There may be more steps 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 have rigid notice requirements, Deitchler said. Employers may be required to communicate the positive results within a certain time and provide the applicant or employee with time to contest the results and to take a confirmatory retest.

Whether the failed drug test was administered pre-employment, post-incident or otherwise, employers should take a step back and think through the situation before taking any adverse action, Phillips said.

"You want to be consistent with how you've handled positive results in the past," he said. If an employer fired all the men who tested positive for cocaine, but not the women, that inconsistency could create legal problems.

Furthermore, particularly when it comes to medical marijuana and prescription drug use, employers will want to consider any obligations under the Americans with Disabilities Act or state disability laws.

Medical Marijuana Laws

Marijuana use presents its own set of challenges because, even though using it is still illegal under federal law, 29 states allow it for at least medicinal purposes. Some state laws provide employment protections, some explicitly don't, and others are silent on the issue.

New York law protects registered medical marijuana cardholders under disability accommodation laws. In some states—such as Massachusetts and Rhode Island—courts have recently held that employers can't take adverse action against job applicants or employees based solely on their status as cardholders.

Employers in states where medical marijuana is legal should go through an interactive process to see if there's a reasonable accommodation that can be made for the employee, Phillips said.

If an employer has operations in only one state, it is easier to figure out what the pros and cons are of a marijuana policy decision, Deitchler said, adding that multistate employers need to have a framework for dealing with the patchwork of state laws in this area.

Phillips noted that no state law or court has said that employers must accommodate on-the-job use or intoxication.

"The trouble is with knowing when someone is actually under the influence at work," he said. As with alcohol use, employers should train their managers to look for signs of intoxication, he added. Supervisors can fill out a standard form noting the date and time and the observed behaviors—such as stumbling, slurred speech, etc. If a drug test later confirms marijuana use, the employer will have documentation that the worker was observed as impaired on the job.

Prescription Drug Use

Company policies that broadly prohibit the use of controlled substances can be problematic because prescription drugs fall into that category, Deitchler said, adding that policies should focus on forbidding unlawful use.

Additionally, employers might want to require that employees report the use of prescribed medications if such use could create safety issues, Deitchler said.

As with medical marijuana, if someone tests positive for prescription drugs, employers should engage in an interactive process and work with legal counsel and medical professionals to see what options are available, Phillips said. "It's going to be more complicated than just saying, 'You failed; you're fired.' "

Confidentiality

Employers need to have a discrete and defined protocol regarding who gets drug-test results, Deitchler said. They should also consider how they are going to communicate the results with the job applicant or employee.

If it is calling to share the results, the employer should make sure the person can discuss a confidential matter. If sending a letter, the employer should mark the letter as "personal and confidential" and should also place these words on the front and back of the envelope, Deitchler suggested. "If the letter is sent to the person's home, you don't want a spouse or a kid to get that communication," he said.

He added that sending the drug-screen results via e-mail could be problematic from a confidentiality standpoint unless it is clearly communicated in advance that the results will be sent that way. "You just don't know who has access to someone's e-mail," he said.

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