In 2017, there were more failed workplace drug tests than ever before. This alarming trend appears to be continuing. Some of the contributing factors include access to cheap illegal drugs, the legalization of marijuana in some states, and movements that some say enable drug users more opportunity to ingest illicit substances.
It shouldn't come as a surprise to anyone that employers are struggling to understand what they can do when it comes to drug use in the workplace.
While we find that employers have many questions, the one we are asked the most is; what happens when someone fails a workplace drug screening or drug test?
Let's run through some workplace drug testing scenarios and give you an overview of what an employer should be doing.
First, let's consider the case of a job applicant who fails a pre-employment drug screening. The first thing to understand is that a company should not conduct a drug test until there is an offer of employment. Employers should make a job offer conditional on passing a drug test. In this case, if the applicant fails a drug test, the job offer is immediately withdrawn, and the applicant no longer has an opportunity to work for the company.
Next, let's look at the case of an existing employee who is selected to take a drug test. If the employee fails the drug test, in other words, tests positive for drug use, the company managers along with Human Resources should refer to the drug-free workplace policy. The policy is where they will find the process and procedures for dealing with the situation.
The Drug-Free Workplace Policy
A well thought out policy will inform that the use of drugs in the workplace is prohibited.
You might be surprised to learn that many companies do not have a comprehensive drug-free workplace policy or they neglect to inform employees about the policy.
If it is the case that there is no drug-free workplace policy, then the company needs to put one in place immediately. Moreover, the company must communicate all aspects of the policy to all employees.
If there is no policy in place, then the employee who tested positive for drugs will get a second chance.
If you and your company have a drug free workplace policy, when an employee tests positive for drug use, you should follow the outlined protocols.
The Second Chance Agreement
In many cases, the protocols will call for immediate termination of the employee. Sometimes, though, a second chance might be offered, based on a specific set of conditions. When an employee is given another chance, it is commonly referred to as a Second Chance Agreement.
The Second Chance Agreement will spell out precisely what the employee needs to do to maintain employment with the company. For instance, they might need to get help for substance abuse, go to rehab, enroll and participate in a 12-step program, Euse the company's EAP.
Further, the employer and employee should discuss any performance issues that might be related to drug use while at work.
Typically in a second chance agreement, employees get some sort of assistance in dealing with a substance abuse issue. This help comes in the form of an Employee Assistance Program or EAP, where the employee can get confidential help.
EAPs are often included in company health insurance programs but are often not as well known by the employees or the employer.
Smaller companies may not have an EAP. These companies should, at a minimum, provide employees a resource page of local resources, and websites that offer assistance and treatment for a substance abuse problem.
Keep in mind that the company is under no obligation to pay for substance abuse counseling.
The company can also require an employee to participate in follow up testing after they come back to work, or as a condition for coming back to work. The company can also require the employee to pay for the follow-up drug tests, with no company reimbursement.
If an employer has a second chance policy, it doesn't mean they will incur additional costs for counseling or retesting.
Now, State laws vary; and some state laws require that you cannot terminate someone on the first instance of a positive drug test.
For that reason alone, it's essential to work with an expert to make sure you do not write a policy that violates state laws which would open up the employer up to a lawsuit.
Following the Drug-Free Workplace Policy
Where some companies run into trouble is when they treat employees differently. For instance, if one employee is given a second chance and another is terminated, the differing consequences could trigger a lawsuit. The drug-free workplace policy should be precisely followed, and each employee treated the same.
DOT regulated companies like trucking companies, public transportation, etc. are required to have a drug and alcohol testing program. If an employee tests positive for drug use, that person should be removed from any safety-sensitive position.
Any person testing positive for drug use ina DOT regulated company will need to see a Substance Abuse Professional (SAP) before returning to work.
It is crucial that companies must follow their policy to stay in compliance with DOT regulations.
What happens from the employee's perspective when they fail a drug test?
The employee, in most cases, will know about the positive drug test results before the employer finds out. The Medical Review Officer will get the lab results and will call the employee asking if there is a medical explanation or prescription they would like to reveal.
In this case, the employee knows they've tested positive. Following that, the employer gets a report on the results of the drug screening. The employee will probably get called into Human Resources to discuss the situation. We strongly advise that the employee works closely with HR and understands that they must work within the specifications of the company policy.
Every employee that tests positive has an option to contest the result. When they elect to contest the results, they communicate with the MRO and reveal that they think the test is wrong.
The next step is for the original collected sample to be retested at another drug screening facility. In our experience, an overwhelming majority of about 98% get the same result back.
Many people wonder if an individual can give a second sample for the retesting. The short answer is, no. They do not have the option to provide another sample since the presence of drugs in the new sample will be different from the original specimen.
Sometimes, an individual does not communicate with the MRO, and they do not learn the drug test results. In this case, they find out their test results from HR for the first time.
At this point, if there is a legitimate medical explanation, just as though they learned the results from the MRO, the MRO will need to review the newly acquired information with the pharmacy and other medical professionals.
The employer and the employee will need to follow the company's policy based on the findings of the MRO.
If you are an employer, the best thing you can do right now is to create a policy or review your current policy for compliance with federal or state laws.
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