In Nevada and California, employers do have the right to suspend or fire an employee whose drug test result is positive. However, many states’ guidelines and regulations have evolved to recommend companies assist their workers in getting into a rehab program. Employers are in a unique position to help employees get clean and get back to work.
Can a company terminate an employee for a positive drug test?
Their policy clearly allows for the possibility of termination at their “sole discretion” and the degree of action can “depend of the circumstances of each case”. Let’s start with the basics. Prevention: The best way to deal with a positive drug test is not to have employees who test positive in the first place.
Can an employer rescind a job offer after a drug test?
If an employer makes a job offer contingent on passing a drug test, the offer can generally be rescinded if the applicant tests positive. There may be more steps employers must follow for current employees.
What happens if an employee refuses to go to drug treatment?
If the employee refuses a treatment program, neglects to complete it, or fails subsequent drug tests after returning to work, employers then have the right to fire them. It’s still important to include a complete description of the return-to-work process in your company’s drug and alcohol policy.
Is immediate dismissal necessary to deter other employees from using drugs?
They agreed with the Tribunal that immediate dismissal was necessary to deter other employees from using drugs in a safety sensitive environment and that workplace safety is a relevant factor to consider when determining whether an employer has accommodated to the point of undue hardship (at para. 55).
Can you fire an employee for suspected drug use?
If you have a reasonable suspicion of an employee's drug use, so long as you follow your state's laws for performing an employee drug test, there is generally no legal concern. If the test comes back positive, you will usually be clear to terminate, or discipline the employee, for cause.
What to do if an employee has a positive drug test?
An employee whose drug test comes back positive has the right to contest the result. They can request the same sample be retested at another licensed and approved laboratory at their expense. However, it is not advisable to let the employee retest, as time has passed and they might attempt to cheat the test.
When dealing with an employee suspected of substance abuse a supervisor should?
First and foremost, if an employee is reasonably suspected of being impaired in the workplace, the employer should take immediate action to remove the employee from any safety-sensitive work and should investigate the potential impairment by (1) gathering evidence from supervisors (ideally trained in identifying drug ...
What OSHA says about drug testing?
The provisions prohibit employers from using drug testing or the threat of a drug test to discourage workers from reporting on-the-job injuries and illnesses. Specifically, OSHA said employers shouldn't administer blanket post-accident drug tests in situations when drug use likely did not cause an injury.
What are the consequences of a failed drug test?
Failing a drug test in California means that an employer can legally deny you employment, or terminate your employment depending on the conditions of your hiring. Once you have been hired, the employer may choose to continue your employment but decline to promote you until you pass the next series of drug tests.
Can my former employer say I was fired for failing a drug test?
For most privately-owned companies, previous employers may not disclose the results of a drug test on a background check. For most workers in the United States, their employer will never disclose a failed drug test. However, many government positions require this information and are permitted to seek it.
How do you deal with an employee on drugs?
If you suspect an employee of being impaired on the job:Take immediate action to remove the employee from any safety-sensitive work and begin gathering evidence of the incident.If applicable state laws and your employer policy allows, send the employee for a drug or alcohol test.
Can you sack someone for taking drugs?
While it is true that employees guilty of drug use, even outside work, leave themselves exposed to dismissal on grounds of either capability, conduct or “some other substantial reason” (especially if use of the drugs in question is itself illegal) that decision cannot be automatic.
What would you do if one of your subordinates has a serious drinking or drug problem but refuse to admit it even though it stongly influences his performance on the job?
If you suspect alcohol is a factor, but the employee does not admit it or refuses treatment, you can still pursue discipline -- up to and including dismissal from employment -- for failure to adhere to performance, conduct and attendance standards.
What responsibility does OSHA place on employers employees?
The law requires employers to provide their employees with working conditions that are free of known dangers. The OSH Act created the Occupational Safety and Health Administration (OSHA), which sets and enforces protective workplace safety and health standards.
Does OSHA require a drug test?
Yes. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries. Rather, employers must have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use contributed to the injury.
Which of the following are employers required to do under OSHA?
Under the OSH law, employers have a responsibility to provide a safe workplace. This is a short summary of key employer responsibilities: Provide a workplace free from serious recognized hazards and comply with standards, rules and regulations issued under the OSH Act.
Why add a section to your drug policy?
Adding a section to your drug policy providing examples or prohibited behavior and their consequences can help prevent real or unconscious/unintended bias. For example, if an employee is caught with illegal drugs on their person, the consequence cannot be demotion for one employee and termination for another.
What is employee assistance program?
Employee Assistance Programs – Programs designed provide assistance to employees who may be abusing drugs or alcohol or who may have in the past. The drug policy: If your organization doesn’t have a written drug policy, then not only should you not fire an individual for a positive drug test, you shouldn’t even be drug testing at all.
Do you need to keep proof of drug testing?
If you do have a drug testing policy you should also keep proof your employees have received a copy. A signed document acknowledging receipt is recommended. Federal and State Law: Laws change all the time. On any given day there can be dozens of states with pending legislation related to drug and alcohol use.
Laws to follow when confronted with a positive drug test
Just because an employee tests positive for drugs or alcohol, in some states, it doesn’t give you a right to fire them. In Minnesota and Vermont, for example, you’re not allowed to dismiss an employee the first time he or she fails a drug screen if the person agrees to successfully complete a drug rehabilitation program.
How to approach an employee who tests positive on a drug screen
If your employee recently tested positive for drugs or alcohol, you may be surprised to find yourself feeling an array of emotions. You’re disappointed in a person you regard as an asset to your workforce, and you may even regret hiring them.
Employees maintain rights when they test positive for drugs
Your employee maintains many of their rights in the case of a positive drug test, among them the right to privacy and confidentiality. No matter how you intend to handle the situation, a person’s test results should be treated like any other highly sensitive information.
What is the takeaway from the case of the alleged discrimination?
The takeaway from this case is that both human rights tribunals and courts will look closely at the steps taken by an employer when dismissing an employee for cause in circumstances where discrimination is alleged. In order to justify the dismissal, the employer will have to satisfy the decision maker that the protected ground is not a factor ...
How long did Stewart have to reapply for employment?
In fact, even though it terminated Mr. Stewart, the employer offered him the ability to reapply for employment after six months if he completed a rehabilitation program at a recognized facility. The employer also offered to pay for half the cost of the program if he agreed to certain conditions.
Why was Stewart not fired?
The Tribunal determined that Mr. Stewart was not fired for his addiction, but for failing to comply with the terms of his employer’s policy to disclose his drug dependency. It also concluded that Mr. Stewart was not prejudiced by the policy because he could have complied with it irrespective of his addiction.
Can you be fired for being addicted to drugs?
Addiction is considered to be a disability and, as such, an employee cannot be fired for being addicted to substances such as drugs or alcohol. In fact, employers are required to accommodate employees who suffer from addiction to the point of undue hardship. In most cases, such accommodation takes the form of allowing the employee to take time ...
Who concluded that there was no prima facie case of discrimination?
Chief Justice McLachlin, writing for the majority of the court, concluded that the Tribunal’s decision that there was no prima facie case of discrimination was reasonable. Justices Moldaver and Wagner, while concurring that the appeal should be dismissed, held that the test for prima facie discrimination was met.
Did Stewart tell his employer he was addicted to cocaine?
Mr. Stewart failed to tell his employer that he used cocaine on his days off. After being involved in a workplace accident with his loader and testing positive for drugs, he told his employer that he thought he was addicted to cocaine. In reliance on the policy, the employer fired Mr. Stewart nine days later. Mr.
What is PAS drug test?
PAS requires all employees referred for positive drug test to submit to a least one compliance drug screen prior to return-to-work, using an equivalent substance use testing panel of the employer.
What happens if a company returns an employee to work?
If a company returns an employee to work prior to producing a clean drug test, the company assumes all liability associated with such a decision. It is in itself a violation of the company’s DFW policy, and it places the company “at risk” for liability should the employee become involved in a work-related accident.
How to refer an employee to EAP?
When an employee has tested positive and your DFW policy allows for a referral to the EAP for treatment in lieu of termination, call PAS to make a referral for assessment and EAP treatment plan development. The following information is needed for a referral: 1 Employee’s name 2 Your name, and names of employer representatives who should be on Release of Information for compliance reporting. For DOT referrals, this should include the DER (Designated Employer Representative) 3 Employee’s job title, whether job is considered safety- sensitive, employee holds a CDL, falls under DOT regulations 4 Is employee suspended? If so, for how long? 5 Under what conditions did employee test positive? Random? Reasonable suspicion? Post-accident? Other? 6 Substance employee tested positive for 7 Date of the test 8 Testing panel used by your organization
Can an employee be referred to the EAP?
Some DFW policies, however, allow for an employee to be referred to the EAP for treatment in lieu of immediate termination. In these cases, the employee signs a Last Chance Agreement (LCA) and the employer makes a mandatory referral to the EAP.
Do you have to complete treatment recommendations prior to return to work?
Employees referred under DOT regulations must complete treatment recommendations prior to return-to-work.
Can you return to work after a drug screen?
Employees in non-safety sensitive positions may be eligible for return-to- work prior to completion of treatment when the employee has demonstrated adequate progress in treatment and has successfully returned a negative compliance drug screen. In these cases, treatment will continue after return-to- work in order to support the employee’s recovery.
Is drug testing good for employers?
Employees may perceive testing to be punitive, intrusive and “big brother”; however, there are significant benefits to testing, both for employees and employers: Drug testing promotes a safe work environment for all employees.
What happens if an employee is drug tested?
For example, Minnesota has a drug-testing law that provides that, if an employee has been drug tested and has a first-time positive test, the employee must be offered treatment before the employee can be fired.
Is illegal drug use a disability?
Current illegal drug use is not a protected disability under the federal ADA, although alcoholism and past drug addiction from which someone has recovered are protected disabilities. Given that the employee at issue has admitted current illegal drug use, he should not be protected by the ADA.
Do you have to give time off for drug use under FMLA?
If your company has distributed a written policy to employees that clearly states that an employee can be disciplined and terminated for illegal drug use, you don’t need to give the employee time off under the FMLA. Substance abuse can be a “serious health condition” entitling someone to FMLA leave for treatment.