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Monday
Jan122009

Employee Fails Drug Test - Part 1

Employees failing drug tests are a big problem for employers.

Maybe it is a crucial employee with critical knowledge that can not be easily replaced.

Maybe the employee claims they are innocent and that they merely attended a party where they were exposed to “second-hand” Marijuana smoke or that they have a prescription for the opiate revealed by the test.

We will cover a number of drug testing issues. The first question is “What do you do when an employee fails a test for controlled or legal substances?”

You should begin with a written statement of your drug and alcohol policy. Hopefully, that is a policy that you are continually updating. With changes in this area, it is crucial that you have an up-to-date policy. In the employee handbooks we prepare, it seems like we make changes almost every year.

Remember, failing a drug test is not a violation of your drug policy. Instead, it is evidence of conduct by the employee that may have violated your drug and alcohol policy. It is important to keep this distinction in mind.

There are a number of different ways to “fail” a drug test. We can talk about this later if you would like. Each of these methods could be evidence of different conduct that might violate your drug policy (if it is written properly).

A report from the testing lab that an employee failed a drug test is an allegation of employee misconduct. As such, you have a duty to investigate that allegation before taking action.

In the meantime, while you conduct your investigation, you can suspend the employee “pending investigation. This gets the employee off of your premises while you complete your investigation, reach your conclusion and, if appropriate, determine appropriate sanctions, up to and including termination.”

Part 2 of this continuing series will discuss whether the suspension should be with pay or without pay.

Part 3 will discuss how to conduct the investigation.

If you would like to comment on this series or if there is a particular question you would like me to address, please use the comment section below.

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