Some industries 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 which vary widely.
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. If an employer makes a job offer contingent on passing a drug test, the offer can generally be rescinded if the applicant tests positive.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. 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.
You want to be consistent with how you have handled positive results in the past. 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.
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. Multistate employers need to have a framework for dealing with the patchwork of state laws in this area. Currently, 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. As with alcohol use, employers should train their managers to look for signs of intoxication. 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. 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.
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. It’s going to be more complicated than just saying, “You failed; you’re fired.”
Employers need to have a discrete and defined protocol regarding who gets drug-test results. 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. If the letter is sent to the person’s home, you don’t want a spouse or a child to get that communication.
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. For this reason, it’s a good idea to have employees fill out a form identifying what types of communications they authorize the employer to send to them.
If you have any questions about how to set up a compliant drug testing program, training program or questions about how to handle a positive result, please consult with Murray Securus HR Solutions.
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