Last updated: May 13, 2024
This is a common question asked by business owners and HR professionals. What should I do when the MRO reports out a “positive” result?
While that may seem like an easy question for some, those who may not be familiar with drug testing may be a little unsure of what to do next. Do you terminate the employee, offer another chance, or what?
Before you make any decisions, what does your policy say? Your policy must be your guide to providing the answer. Your exposure to legal action rises significantly if you don’t have a policy or you don’t comply with what it says.
What are the options: Termination or Second Chance?
4 Things to consider:
- Reason for testing? The reason for testing may dictate your decision. In many cases, companies choose to terminate employees who test positive in these situations: Post-accident, reasonable suspicion, return-to-work, and follow-up testing. Pre-employment “positives” are normally treated as a “no hire” for applicants.
- Random testing is a situation where we see companies offering a second chance. Why treat random testing any differently? Here’s something to think about. What if your top sales producer injures his back over the weekend and decides to take a Lortab that was prescribed to his wife after recent surgery? Did that employee make a bad decision, yes! Is it illegal, absolutely! Should you terminate your top revenue generator, not sure? That is why you will see policy language written this way: “action will be taken up to and including termination”. This allows the employer some flexibility but can be risky if you aren’t consistent on when and when not to terminate.
- Is it a safety-sensitive position? A safety-sensitive position is clearly laid out in DOT regulated businesses. However, a non-DOT regulated company determines themselves what is a safety-sensitive position. By definition, “a safety sensitive position is a position the employee holding this position has the responsibility for his/her own safety or other people’s safety”. Obviously, this type of position exposes the employee, co-workers, and others to additional injuries and/or catastrophic losses. For this reason, one can justify more severe consequences if an employee in one of these positions is caught abusing drugs.
- Follow-up testing. Second chances may allow you to keep some valuable employees but it definitely comes with a cost. First of all, an employee testing positive should be referred to a (SAP) Substance Abuse Professional. A SAP is able to determine the severity of an addiction and when the employee is clean and capable of returning to work. Once a SAP provides a release to work, additional follow-up testing should be conducted for at least two years. DOT follow-up testing is determined by the SAP. It is up to the employer’s discretion for follow-up testing in a non-DOT environment. Follow-up testing includes the cost of the drug test itself along with the time required to administer the paperwork. Most all employers will terminate an employee who fails a follow-up test.
- Second chance agreement— If the decision is to allow for a second chance, an agreement should be signed with full disclosure of the process and who is paying for the rehabilitation and testing services. Insurance will sometimes pay for drug/alcohol rehabilitation and counseling
- Does the type of drug matter? This question seems to be coming up more especially since the opinions on marijuana are loosening up. If you are in most states, including Tennessee, marijuana is still illegal and considered a Schedule I drug. According to recent news, the DEA rejected petitions to reschedule marijuana. A positive is a positive no matter what the drug is and you must follow your policy. If you are indifferent about your employees using marijuana, you can always reconsider the panel of drugs being tested for. Keep in mind that state and federal programs have minimum standards on which drugs are to be included in the panel. Most states follow the federal DOT panel which includes: marijuana, amphetamines (includes meth), opiates, cocaine, ecstasy, heroine, and PCP.
Final thought: Trust the results.
Don’t retest just because the donor is insisting it’s a mistake. Your policy should have the means in which one may contest a result by sending the split specimen to a different lab. SAMHSA approved lab testing for drugs is nearly 100% accurate. An approved lab and a qualified MRO should provide you peace of mind that the results are accurate and trustworthy. A collection taken yesterday and one taken today can produce two separate results because drugs can only be detected in the system for a certain period of time. What was in the specimen yesterday may not be detected in today’s specimen.
Please call USA Mobile Drug Testing of Nashville for a free review of your policy. Your decision will be easier if you have a well written policy.