If I Fail a Probation Drug Screen Will They Screen Me Again on My Next Visit?
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You decided to screen workers for drug use because you want to maintain a safe and productive workplace. But what should yous do when workers flunk the test? Should employees be fired, given another chance or referred to an employee assistance programme? Employment attorneys say consistency is the key.
"Employers should accept strong policies in place addressing whether or under what circumstances they will engage in dialogue with an employee or bidder who fails a drug examination," said Jill Vorobiev, an attorney with Reed Smith in Chicago. Policies also should accept into account any country laws that may apply to failed drug tests and whether the employer might demand to make reasonable accommodations for workers with disabilities, she said.
With the increasing number of states that take legalized medical or recreational marijuana, employers will demand to review those laws earlier making employment decisions based on failed drug tests. Note that some industries, rubber-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.
Hither are some steps employers should consider taking to ensure they respond consistently when employees don't pass a drug screen.
Include a Medical Review Process
Drug-testing rules can be complicated because they may require medical noesis and an understanding of applicative federal, state and local laws.
Furthermore, employees may have excuses for declining a drug test: they ate too many poppy-seed bagels, accidently picked up the incorrect brownie at a party or were stuck in a automobile with someone who was smoking weed. Mayhap they'll debate that the examination is wrong. Employers need to consider how they'll handle these situations.
"I recommend employers use tertiary-party drug-testing facilities with a medical review officer," said Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich. "The medical review officers generally know if chore applicants or employees are not existence truthful, considering the tests themselves already account for poppy-seed bagels, secondhand smoke intake and the like."
Dr. Todd Simo, chief medical officeholder 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 examination. If the worker has an acceptable caption 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.
Decide What Steps to Take
State laws vary regarding the steps employers must take after an employee fails a drug exam. Pre-employment screening can exist more straightforward than random and mail-accident screening and tests based on reasonable suspicion.
If an employer makes a task offering contingent on passing a drug test, the offer can generally exist 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 tin't fire someone for the first failed drug test if the employee agrees to complete a rehabilitation program.
Some states as well require employers to provide certain notices to workers when an adverse action will exist taken based on a failed drug examination. In some locations, the employee must exist 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 examination. "This is likely because drug tests for marijuana are still imperfect and observe use from days and weeks prior," Welch noted.
Under federal constabulary, employers may need to follow Fair Credit Reporting Act notice requirements if they utilize a background-check company to obtain the results from a drug testing lab.
Reasonable Adaptation
Employers don't have to arrange on-the-job harm from marijuana or prescribed drugs, but off-duty use may be protected, depending on the employee's location, circumstances and job.
An employer may be required to engage in an interactive dialogue with a worker to run across if a reasonable accommodation can exist made. "It depends on a number of factors," Vorobiev said. Imagine the employee or job bidder is a registered medical marijuana patient in a state that allows cannabis use to treat a inability. The employer may demand to explore possible accommodations.
The employer doesn't necessarily have to approve the precise accommodation that the employee seeks, said Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles. But engaging in an interactive dialogue "shows that the employer is mindful of the bug and might become a long style in preventing unwanted litigation," she explained.
In virtually lawsuits that have been resolved against the business, the court noted the employer'southward failure to engage in whatsoever dialogue whatever.
Under federal and state laws, an employer may exist required to engage in an interactive process with a worker who uses prescription drugs.
"Employers may consider stating in their policies that they will appoint in a reasonable accommodation procedure where legal marijuana or prescribed drugs are at consequence," Vorobiev suggested.
Disciplinary Action
Should employers fire or decline to hire workers if a reasonable accommodation can't be made? "Information technology depends on whether or non they want to maintain a policy of refusing to hire or employ individuals who test positive for illegal drugs," Welch said.
Some companies have stopped testing for marijuana or ignore initial positive tests when the employee's job is not safety-sensitive, she noted.
Employers should take a comprehensive drug-free-workplace policy and drug-testing procedures that are followed consistently in all circumstances, said David Morrison, an attorney with Goldberg Kohn in Chicago, because employers that inconstantly apply drug-testing procedures may be sued for discrimination.
Source: https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/what-to-do-when-an-employee-fails-a-drug-test.aspx
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