what to do if an employee tests positive for drugs
Page Content
You lot decided to screen workers for drug use because you desire to maintain a safety and productive workplace. Simply what should you lot do when workers flunk the test? Should employees be fired, given some other chance or referred to an employee aid plan? Employment attorneys say consistency is the cardinal.
"Employers should have strong policies in place addressing whether or under what circumstances they will engage in dialogue with an employee or bidder who fails a drug exam," said Jill Vorobiev, an attorney with Reed Smith in Chicago. Policies as well should take into account any state laws that may utilize to failed drug tests and whether the employer might need to brand reasonable accommodations for workers with disabilities, she said.
With the increasing number of states that have legalized medical or recreational marijuana, employers volition need to review those laws earlier making employment decisions based on failed drug tests. Note that some industries, condom-sensitive jobs and federal contractors must comply with federal drug-testing rules that dictate the steps employers must have and are generally excluded from land law limits on drug testing.
Here 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 crave medical knowledge and an understanding of applicable federal, state and local laws.
Furthermore, employees may have excuses for failing a drug test: they ate too many poppy-seed bagels, accidently picked upwards the wrong brownie at a party or were stuck in a auto with someone who was smoking weed. Perhaps they'll contend that the test is wrong. Employers need to consider how they'll handle these situations.
"I recommend employers apply third-political party drug-testing facilities with a medical review officer," said Anne-Marie Welch, an attorney with Clark Colina in Birmingham, Mich. "The medical review officers generally know if chore applicants or employees are not being truthful, because the tests themselves already business relationship for poppy-seed bagels, secondhand smoke intake and the like."
Dr. Todd Simo, master 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 caption for a failed examination. If the worker has an acceptable caption for the result, the drug screen is reported to the employer equally a negative test consequence, the same equally it is reported if no drugs were plant.
Determine What Steps to Take
State laws vary regarding the steps employers must accept after an employee fails a drug test. Pre-employment screening can exist more straightforward than random and mail-accident screening and tests based on reasonable suspicion.
If an employer makes a chore offer contingent on passing a drug test, the offering can mostly be rescinded if the applicant fails, merely at that place may exist more steps that employers must follow for electric current employees. For example, in Vermont and Minnesota, an employer can't fire someone for the starting time failed drug exam if the employee agrees to complete a rehabilitation programme.
Some states also crave employers to provide certain notices to workers when an agin action will exist taken based on a failed drug test. In some locations, the employee must be given the opportunity to competition the results and retest.
In states where marijuana is legal, employers may need to follow specific guidelines earlier making an adverse employment decision. For case, in Illinois, employees must be given the opportunity to challenge the results of the test. "This is likely considering drug tests for marijuana are nonetheless imperfect and observe utilise from days and weeks prior," Welch noted.
Under federal police, employers may demand to follow Fair Credit Reporting Act observe requirements if they utilize a background-check visitor to obtain the results from a drug testing lab.
Reasonable Accommodation
Employers don't have to accommodate on-the-job impairment from marijuana or prescribed drugs, but off-duty use may exist protected, depending on the employee'due south location, circumstances and job.
An employer may be required to engage in an interactive dialogue with a worker to encounter if a reasonable accommodation can be fabricated. "It depends on a number of factors," Vorobiev said. Imagine the employee or chore bidder is a registered medical marijuana patient in a state that allows cannabis use to treat a disability. The employer may demand to explore possible accommodations.
The employer doesn't necessarily have to corroborate the precise adaptation 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 issues and might go a long way in preventing unwanted litigation," she explained.
In virtually lawsuits that have been resolved against the business concern, the court noted the employer's failure to engage in any dialogue whatsoever.
Under federal and state laws, an employer may be required to engage in an interactive process with a worker who uses prescription drugs.
"Employers may consider stating in their policies that they volition engage in a reasonable accommodation procedure where legal marijuana or prescribed drugs are at event," Vorobiev suggested.
Disciplinary Action
Should employers burn down or refuse to hire workers if a reasonable accommodation can't be made? "Information technology depends on whether or not they desire to maintain a policy of refusing to hire or utilise 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 task is not safety-sensitive, she noted.
Employers should have a comprehensive drug-gratis-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 utilize drug-testing procedures may exist 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
0 Response to "what to do if an employee tests positive for drugs"
ارسال یک نظر