Ugh. One of your employees tested positive for drugs.
Even though this is the very reason why you perform drug testing, it’s a disappointing and vexing situation. You need to decide whether to keep them on staff and deal with legal implications of whatever comes next, or let your asset walk out the door.
If you’re an employer or human resources representative dealing with a positive employee drug test, you have options that can resolve this difficult situation and even lead to positive outcomes. If you approach the situation firmly, yet compassionately, you may assist the employee in obtaining help while protecting your concerns in the process.
Just because an employee tests positive for drugs or alcohol, in some states, it doesn’t give you a right to fire them. In Minnesota and Vermont, for example, you’re not allowed to dismiss an employee the first time he or she fails a drug screen if the person agrees to successfully complete a drug rehabilitation program.
In Nevada and California, employers do have the right to suspend or fire an employee whose drug test result is positive. However, many states’ guidelines and regulations have evolved to recommend companies assist their workers in getting into a rehab program. Employers are in a unique position to help employees get clean and get back to work.
If the employee refuses a treatment program, neglects to complete it, or fails subsequent drug tests after returning to work, employers then have the right to fire them. It’s still important to include a complete description of the return-to-work process in your company’s drug and alcohol policy.
For Department of Transportation return-to-duty testing, employees must follow
specific procedures that includes clearance to return to work by a
If your employee recently tested positive for drugs or alcohol, you may be surprised to find yourself feeling an array of emotions. You’re disappointed in a person you regard as an asset to your workforce, and you may even regret hiring them. You may feel deceived that your confidence was violated by someone whom you entrusted with your company’s reputation.
Panic might flood your mind, knowing this employee was at the wheel of your delivery truck or caring for a patient in your medical office. You may be angry when considering the potential harm the employee’s impairment could have caused.
Although your feelings can be justified, refrain from overreacting when discussing the result with the employee. Speak to the employee in private about the test result, know your facts and be ready to have a discussion. Your employee may question the validity of the test result, claiming a collection oversight, a lab error, or possibly secondhand exposure. Just as frequent, the employee may candidly discuss their drug use with you. As the employer, knowing the lab testing process is the key.
Drug testing labs transition a sample that has tested positive during the initial screening through a more extensive testing process. This confirmation test rules out false-positives. Employee claims of faulty testing or incidental exposure can be countered.
Assure the employee your company considers illicit drug use a serious issue that interferes with the health and productivity of their co-workers and perhaps members of the public. Refer them to your company drug testing policy. It’s important to treat every positive test incident the same way, according to predetermined rules.
Your employee maintains many of their rights in the case of a positive drug test, among them the right to privacy and confidentiality. No matter how you intend to handle the situation, a person’s test results should be treated like any other highly sensitive information. In best practice, the results are to be stored in a locked cabinet separate from the employee’s personnel file.
According to the Knowledge Center at the website for the Society for Human Resources Management (SHRM), the Equal Employment Opportunity Commission states, “if the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.”
An employee whose drug test comes back positive has the right to contest the result. They can request the same sample be retested at another licensed and approved laboratory at their expense. However, it is not advisable to let the employee retest, as time has passed and they might attempt to cheat the test.
It’s also important to remember that employees may test positive for substances they are legally allowed to consume. The rules on recreational marijuana are still murky; however, employers retain the right to maintain a safe work environment while addressing any decline in work performance. Pay attention to your state laws to ensure you are aware of the guidelines when addressing reasonable accommodation in the workplace.
If you need assistance developing an employee drug-testing policy for your company, we can help you cover the important points.