An employee “fails” a drug test. What does this really mean?

There are at least seven ways an employee might “fail” a drug test. Whether you may discipline or terminate the employee, however, depends upon how carefully you word your drug policy.

Let’s count the ways an employee might fail a drug test.

1. The employee tests positive for one or more illegal drugs.

2. The employee tests positive for marijuana and then notifies you for the first time that he has a medical marijuana card.

3. The employee tests positive for use or misuse of prescription drugs.

4. The “specimen integrity test” reveals that the sample is diluted or masked by fluids or substances ingested by the employee prior to the test.

5. The employee tampers with the sample before turning it in to dilute or mask evidence of drug use.

6. The employee substitutes another person’s sample for their own (there are even mechanical devices for concealing this substitution).

7. The employee refuses to submit to a drug test.

You probably believe that any of the seven results listed above constitutes a failed test that should result in discipline or termination. In the first instance, the positive test for illegal drugs, you may be correct. Each of the other situations, however, depends on how carefully you word your drug policy.

Don’t rely on a policy borrowed from someone else or downloaded off the Internet. It might not be right. Or, it could be outdated. Or, it may fail to adequately cover each of the seven situations listed above.

This is a rapidly changing area. The tricks employees use and the tests to identify those tricks are constantly changing. The law also changes. We revised the drug and alcohol policy we use with our clients almost every year. A number of changes have been made for 2009 alone.

Work with an experienced attorney that is up to date in this area. With a little help, you can have a drug policy that protects you and your workplace.

Part 4 of this continuing series will discuss how to conduct an investigation.

Part 5 will discuss discipline for failing a drug test and why you must never use a “last chance” agreement.

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.