Employee Fails Drug Test - Part 2

We talked about what you should do when an employee fails a drug test in Part 1 of this series.

A failed drug test is not a violation of your drug policy (which should be carefully drafted and in writing). Instead it is merely an accusation of misconduct.

Like any misconduct claim, it should be investigated. During the course of the investigation, the employee can be suspended “pending investigation.”

Should this suspension be with pay or without pay?

Obviously, the answer to this question has important financial consequences for the employee. The costs to the employer are not to be discounted either.

If the test reveals that you have a meth addict working for you, you may very well want to suspend him or her without pay. If it is a case where an employee is prescribed pain killers but the test reveals levels slightly higher than that prescribed by the physician, until the reasons for this discrepancy are known, you may want to reduce the hardship on the employee.

There is a middle ground. Several employers I work with take the position that if the investigation reveals there has been a violation of the employer’s drug policy, then the suspension is without pay. If on the other hand, it is discovered that there has been no violation or nothing more than a simple mistake, then the employee will be compensated while they have been off work pending the investigation.

This can be a good approach for a couple of reasons. First, it is fair. You took the time to conduct a thorough investigation. You did not make a snap decision. If the employee did nothing wrong, the employee does not suffer.

Second, this approach gives you some flexibility in crafting a severance agreement. When employers ask me to conduct investigations, I have been very effective at leading employees to admit when they violated the employer’s policies. They then agree to resign rather than continue the investigation. This way there is no report from me to the employer. Accordingly, the employer is not obligated to disclose my report to the Employment Division when asked about unemployment. This can be a benefit to the employee.

As part of the voluntary resignation, we enter into a written severance agreement. This agreement documents the resignation and confirms your promises to the employee. Most importantly, it contains a release from the employee releasing you from liability for any employment related claims, other than workers compensation claims.

In order for the severance agreement to be effective, you must give some consideration to the departing employee. The money saved by making the suspension without pay can be applied to a modest severance payment. With that payment and with other promises contained in the agreement, there should be adequate consideration to support the release by the employee.

The choice of whether to make a suspension pending investigation following a failed drug test with pay or without pay is up to you. There are reasons for either approach. There may even be times where you want to make exceptions to your general policy. The middle-ground approach discussed above has been effective for many clients with whom we work.

Part 3 of this continuing series will discuss the many ways an employee might “fail” a drug test.

Part 4 will discuss how to conduct the investigation (originally this was to be Part 3).

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 comments section below.