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As the employer, what do you do if an applicant or employee has a verified positive, adulterated, or substituted test result, or some other violation of the policy? The employer’s decision may be subject to federal regulations, state laws, city ordinances and/or collective bargaining agreements. Additionally, employers should also take into consideration the company culture and the nature of work performed by the employee or applicant in determining the best defense for disciplinary action.
Federal Regulations and Drug Testing Violations
Federal Department of Transportation (DOT) regulations do not address employment actions and leave those decisions to employer discretion. Under federal regulations, the primary requirement for employers is to immediately remove employees from performing DOT safety-sensitive duties and provide the employee with a list of qualified Substance Abuse Professionals (SAPs) when there is a violation. If an applicant tests positive or refuses a pre-employment drug test, the same process must be followed.
If an employer permits an employee to return to DOT safety-sensitive duties following a violation, they must first ensure the employee has completed a SAP evaluation and followed the appropriate recommendations. For more detailed information about the SAP and the return-to-duty process, please refer to Part 40, Subpart O of the DOT regulations.
State Laws and Drug Testing Violations
Unlike federal regulations, state laws may contain specific disciplinary procedures that employers are required to incorporate into their drug and alcohol testing policies and procedures. The state of Minnesota, for example, generally permits disciplinary procedures based on a confirmed drug, alcohol, or cannabis test result. Employers are not allowed to discipline based on first-time positives, however, unless the employer has offered counseling or rehabilitation at the employee’s own cost or the employee benefit plan’s cost, and the employee has refused or failed said service.
As another example, in Rhode Island employers may not terminate an employee for his or her first confirmed positive test but instead must refer the employee for assistance to a SAP licensed in Rhode Island for assistance. Employees may be terminated if they refuse to undergo treatment or receive a confirmed positive test after being referred for treatment.
Conclusion
It is important to seek advice from an expert before deciding what disciplinary action to take as there are several circumstances to consider. Whether you opt for a zero tolerance, a second chance, or a return-to-work agreement, it is crucial to outline, in your policy, what action you will take with the employee or applicant. This will ensure the employee or applicant is aware of the policy and expectations of the company. A compliant and clearly defined policy can help protect employers from potential litigation.
To learn more about specific disciplinary requirements and state laws, visit currentconsultinggroup.com/current-compliance and subscribe to Current Compliance, the industry’s most up-to-date and complete state drug testing law guide. The Current Consulting Group, LLC provides customized policy writing services for DOT and non-DOT programs. Email us at [email protected] for more information.
© The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.
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Current Consulting Group - Expert Drug Testing Industry Consultants
With 25 years in the industry, Current Consulting Group is uniquely qualified to meet its dual mission, which is to help employers comply with all applicable drug testing laws and regulations and to help employee screening providers increase revenue, improve profitability, and effectively promote their brand.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
