Part 1 Weighing the Pros and Cons. 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. 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.
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. The number of workers who tested positive for drug use reached a year high in , and marijuana topped the list of most commonly detected illegal substances, according to drug-screening company Quest Diagnostics.
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 If an employer makes a job offer contingent on passing a drug test, the offer can generally be rescinded if the applicant fails, but there may be more steps that employers must follow for current employees.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. 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.
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. But not following through sends the message that non-compliance with the Drug-Free Workplace policy is acceptable, working under the influence of illicit sub- stances or alcohol is acceptable, and it sets a precedent for future referrals.
One of our employees disclosed they have a drug problem. What do I do? Can I make a mandatory referral to the EAP? However, treatment compliance cannot be mandated in these cases in lieu of termination i. This article is not intended to be construed as legal advice, but is provided as an overview of good business practices. Louis, MO Material may not be reproduced without written permission. It is a risk-management strategy that reduces the rate of accidents and liability for losses in the workplace employee injuries, death, material and equipment losses, etc.
For those employees who have made poor choices related to alcohol or drug use, a positive drug test and potential termination of employment serve as a motivator to engage in education and significant behavioral changes. The addiction process for most substance users develops over many years. Negative consequences, such as financial problems, family conflict, relation- al issues, job performance decline and health concerns accumulate gradually.
The employee may be unwilling or unable to connect his or her substance use with these negative consequences. Not all employees who test positive are substance- dependent or in need of intensive treatment.
Some may be in the early stages of substance abuse or have made poor choices, but nonetheless will benefit from education and awareness interventions. Research conducted by the National Institute on Alcohol Abuse and Alcoholism NIAAA has concluded that employees who are in serious trouble with alcohol showed significant improvement in drinking behavior and job performance during the months immediately following an intervention in this case, referral to the EAP for positive test.
If so, for how long? Under what conditions did employee test positive? Reasonable suspicion? Substance employee tested positive for Date of the test Testing panel used by your organization. How does the counselor know what kind and level of care treatment is needed? How long does it take? Why is it taking so long? What is the spectrum of treatment?
In general terms, the level of care progression is: 1. Outpatient education and counseling 2. Intensive outpatient 3. Partial hospitalization day only 4. Inpatient rehabilitation In most every case, step or other support group attendance is recommended as well.
Who is responsible for the cost of treatment and compliance test? Does PAS also drug test the employee? Further, if a candidate or employee is taking certain prescription or over-the-counter medications, they may fail a drug test. With failed drug tests on the rise, what do you need to know? If a job candidate fails a drug test, both you and the candidate need to take several different steps.
However, because there are several different scenarios and nuances across each company, industry, and state, it can be challenging to know what to do next. Before hiring a Consumer Reporting Agency CRA like GoodHire to perform drug screening, employers should have their own drug policies drafted first and in place for at least 30 days.
Companies should also consult their legal counsel to draft these policies. Federal laws like the Civil Rights Act of and the Americans with Disabilities Act of prohibit discrimination against candidates and employees based on a prior history of drug abuse or enrollment in rehabilitation programs.
They also prohibit profiling certain groups of candidates for drug testing or singling them out because they may appear to be under the influence, as it may relate to a particular disability, illness, or medical condition.
For example, in Alaska, employers can use a failed drug test as grounds for not hiring a candidate. However, that candidate has the right to explain a positive drug test within 10 days of the results. Similar to failed pre-employment drug tests, there are several different steps employers need to take if a current employee fails a drug test.
For example, some companies may have a zero-tolerance drug policy and may terminate an employee for failing a drug test. If they fail a drug test, they may be referred for treatment, suspended, or removed from the job.
In other states, like Iowa, employees have the opportunity to explain or refute a failed drug test and request to be retested. No matter the state, you should always err on the side of caution and follow the appropriate next steps in any instance of a failed drug test. Under the Fair Credit Reporting Act FCRA , if employers decide not to hire a candidate or to terminate an employee on the basis of a positive drug screening result provided by a consumer reporting agency like GoodHire, employers must provide the candidate or employee with a pre- and final adverse action notice.
These documents inform employees and candidates that their failed drug test resulted in a decision to dismiss or not hire them, respectively.
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