To Fire or Not to Fire? That is the Drug Testing Question.

When should you fire an employee for a positive drug test? Companies who perform post employment drug testing have to make tough decisions about what to do with employees who test positive. For companies who have adopted a zero tolerance drug testing policy, the decision isn’t so difficult. Test positive, get fired. Done and done. Whether or not that’s good policy for the company or the employee is questionable and likely dependant on various factors related to that specific business. But what about companies who do not have zero tolerance policies and have text in their drug testing policy like…

“Employees who violate any of the conditions of The Company’s drug-free workplace program are subject to discipline, up to and including termination at The Company’s sole discretion. The degree of action chosen will depend on the circumstances of each case and will be considered within the parameters of all applicable state and federal laws.”

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.  Wouldn’t it be easier to prevent 3 of out 5 positive tests from occurring rather than deal with 5 out of 5 positive tests? Unless you like making difficult decisions that can have significant effect on employees income, family life and future job prospects you should have practices in place to help deter drug use. We won’t cover these in detail here but here’s a quick check list:

• Random drug testing – A powerful deterrent
• Internal communications – A program of regular communications reminding employees of the drug testing policy. This could include employee awareness programs (see our web-based program here). You could also exhibit drug free workplace posters around the workplace.
• Reasonable suspicion supervisor training program. (See our web-based program here)
• 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. That’s assuming you have better things to do than hang out in courthouses defending your company in a court of law. 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. Keeping tabs with state laws your organization does business in should be a regular recurring practice. In general, if your organization already has your drug testing policy reviewed by an industry expert or legal counsel and it contains language similar to above, then your likely safe with a decision to terminate if it makes sense…however…

Consistent application: …you need to ensure that a decision to terminate is not discriminatory. Your decisions about discipline or termination need to made independent of an employees gender, race, disabilities and/or sexual preferences. 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.

Verified test result?: Did the final test result come from a certified medical review officer (MRO)? If not, you should think twice about even disciplining your employee. An instant drug test positive (cup or strip with visual indicators read by the collector) or even a laboratory positive result should not be considered true results. Neither of these provided the employee a chance to prove they might have a valid prescription or some other valid alternate explanation which may have caused the positive.

O.k., so you’ve determined you have a written and distributed drug testing policy and you’re within state and federal law and you have an actual positive test. Now what?

Incident analysis: Considering the incident

• Previous Issues: What are the circumstances related to the individual? Have they had previous drug or alcohol related incidents? Is there documentation? Are they consistently performing worse than others?
• Occur on or off the job? Did the employees use likely occur on or off the job? One the job use would nearly always lead to more severe action.
• Cost: What would it “cost” to replace them? And by “cost” we mean evaluate a) the actual cost or hiring a replacement b) the cost to the company in lost productivity c) the cost of temporarily transferring their workload to other employees who might already be under stress. Can you afford to fire them now…or should you warn the employee and begin formal documentation process to make future action easier to justify?
• Safety: Are they performing safety sensitive duties? Could their potential use harm themselves or others? If so, you should at a minimum immediately remove them from performing their duties and if transferring to another position isn’t an option, then termination might be the only option.
• Alternative Options: Is firing the best or only option?: Can they be demoted? Can you place them in the EAP program where they can get help and possibly recover? What is the employees  general attitude? Would treatment likely be successful?
• The Substance: Did they test positive for cocaine…or maybe just for opiates related to use for a prescription that recently expired? How about alcohol? Did the employee come in to work in the morning completely inebriated? Or did they just get back from a business lunch? How about marijuana? Do you live in a state where medical marijuana is legal and do they have a prescription? Does your drug free workplace policy address that scenario?

There’s certainly a lot to consider but whatever you do be sure to remain unbiased and make decisions within state and federal law. If you have legal counsel, you should seek their feedback.