With states enacting laws that make medical and recreational marijuana legal, it can be confusing to know how to address an employee that has a positive drug test result. When you are working with an employee that has failed a test it is important to know what how to handle a sensitive situation and how to avoid confrontation. If your testing program has a pre-employment testing requirement, you have the right to deny their employment should they fail the drug test. If you feel strongly about the candidate you can always offer them the opportunity to test again, or you can hire them with the understanding that they would need to take random drug tests as a part of the employment agreement.
Managing the Employee Relationship
Your employees are a critical part of your company, and you probably have employees that perform at higher levels than others. And some that you like more than others, so it is natural that if one of your top performing or well-liked associates failed a drug test, you might want to treat them differently than perhaps someone who is not performing well, or may be difficult when you try to work with them. While it may be tempting to treat your employees differently when it comes to drug test results, you should refrain from giving someone preferential treatment. All of your staff should be addressed with positive intent when it comes to your drug testing policy. It will give your employees confidence that regardless of performance level you are fair to everyone that works for you. Another thing it does is minimize the possibility of a lawsuit. Were you to help a favored employee by giving them a second chance, then fire a less productive employee for failing a drug test, you could be setting yourself up for litigation. If you believe in second chances, you must believe in them for your entire staff, and that should also be built into your substance abuse policy so that the rules are enforced across the board.
Informing an Employee of a Failed Drug Test
Once you are notified that an employee or prospective employee has failed a drug test, you will want to meet with them to inform them. If the results came from a professional testing facility, you should proceed with what the next steps will be, however, if the test was administered on site you would want to reach out to a professional laboratory to confirm the results of your test before moving forward with discipline, or termination. When the results are confirmed, you will review the company substance abuse policy with the employee; you want to share the results with them in a private office. It is important that you do not blame or judge the employee, addiction is considered a medical issue, and the worker may be in need of an assistance program to help them manage their condition. Keep the meeting professional, if the employee denies any drug or alcohol use, you may consider having them complete the second test at a drug testing facility. While false positives only comprise less than 15% of all drug test, it is still a good idea to do all that you can to ensure that the test results are correct. These issues are delicate, and it is important that you treat the employee with respect as they complete the retesting process. Should the lab results confirm the original result, you can then meet with the associate to advise them of the next steps to be taken.
Taking the Right Steps When a Failed Drug Test is Confirmed
If you have a comprehensive substance abuse policy, what comes next should be clearly stated, and the employee should already know what to expect. How
ever, you should make your meeting with your employee more focused on how to help then than the disciplinary process. While it is unacceptable when a worker violates the terms of your drug and alcohol policy, if it is the first time this has happened to them, you may want to consider using an employee assistance plan to create a path for the person to get the help they need. Should you choose to provide a treatment option to the employee, it is important to set clear parameters for when they return to work. You should have a documented plan ready for the employee. Included should be the terms upon which they can return to work, such as mandatory completion of an assistance program and or agreeing to random drug testing during the remainder of their tenure. After gaining agreement, you will want to remove the employee from the office. If it is not safe for the employee to drive themselves home, you would want to arrange transportation for them or a safe place to stay until you feel like they can take themselves back.
When to Consider Separating an Employee
When you feel it is necessary to terminate an employee based on a substance abuse issue, there are some things you will want to take into consideration. First, you will want to make sure you have a clear understanding of the type of drug abuse the employee is using. Secondly, you will want to have every instance where the employee appeared under the influence clearly documented; you will also want documentation signed by the employee stating that they understand that they are subject to separation. There may be circumstances where you can separate an employee with limited documentation; this is most common if the employee is posing a threat to other employees in the workplace. The safety of your staff should always come first. In these situations, it is best to remove the employee from the environment, or if needed call law enforcement to remove the person from the premises. If someone in your office is threatening to harm themselves after you have advised them of termination, you will want to contact law enforcement immediately. An employee under the influence of drugs or alcohol that is making threats to hurt themselves or others should be removed by authorities as soon as possible.
What if a Terminated Employee Sues?
One of the reasons to offer support and assistance and a path back to work for an employee that fails a drug test is to avoid litigation for wrongful termination. While the reality is that these legal challenges are usually dropped or found in favor the employer, there is still a cost for your business when you end up in court. Should you find yourself in a legal situation with a former employee, you will want to make sure that every meeting you had with them is well documented and that the employee acknowledged an understanding of the consequences of their actions. If an employee is seeking legal help for being terminated for refusing to take a drug test, it can be frustrating, but as long as the policy documents that if an employee refuses to take the test, the result is separation you should be covered. In situations where an employee refuses to take a drug test, or is threatening legal action you want to be prepared. This is where documentation becomes critical, having a thorough substance abuse policy that has been shared and is available to all employees will ensure that you are protected. It also gives your employees a clear understanding of your expectations and what the consequences for violating the policy will be. The best way to manage a failed or refused drug test situation is education. The more your employees know and understand the system in place, the less likely you are to find yourself in an uncomfortable situation.
