So You Think You Can Drug Test? Factor #5: Disciplinary Consequences

Sometimes employers spend so much time thinking through their drug testing policy that they forget to think through what they’ll do when someone violates the policy. Today, we’ll look at Factor #5: Disciplinary Consequences as we explore the Top 10 Factors in Developing a Drug Testing Program.

Employers have typically chosen to take a hard line stance regarding substance abuse in the workplace – the “if you test positive, you’re gone” approach. For job applicants, this is nearly universal. Frankly, if an applicant cannot pass a pre-employment drug test, an employer doesn’t need to deliberate over the result very much.

For current employees, however, organizations may want to consider a more nuanced approach. Flexibility in policy language can enable you to still administestate drug testing laws, Drug and Alcohol Policy and Compliancer a particular consequence consistently (e.g., termination), while also leaving room for special circumstances that might warrant a different course of action. For instance, some states (like Minnesota) have a specific statutory provision that prohibit employers from terminating an employee for a first-time positive test result.

Providing a Second Chance

The trend that we see more in administering discipline for violating substance abuse policies is allowing for a “second chance” (and last chance) to individuals that test positive for the first time. As alcoholism and substance abuse has gained more credibility as addictions rather than moral shortcomings, employers will often look to providing the employee with an opportunity to make a change. However, there are typically a few exceptions to this “second chance” policy:

a) If the drug test positive is part of a pattern of poor employee performance or difficulties rather than an exception

b) If the violation was a refusal to test – including being found trying to adulterate or substitute the specimen (essentially, trying to cheat the drug test)

c) If the positive test result was compounded by other violations such as possession of controlled substances, selling drugs, etc.

In these circumstances, the most common practice (unless prohibited by policy or law) is to immediately terminate the employee rather than provide a second chance.

Help Employees, Reduce Employer Risk

For those employers that would like to give employees a second chance after a positive test result, there are a few best practices (originally based on DOT drug testing regulations) that we strongly recommend before the employee is allowed to return to work:

1) Require the employee to get an assessment with a certified Substance Abuse Professional (SAP) – note that this is not the same as enrolling the employee in a treatment program. An SAP is a third party specialist that can assess what type of treatment or rehabilitation the employee may need to “get better.” In most situations, employers can pass any out-of-pocket costs for SAP assessments and treatment to the employee.

2) Ensure that the SAP provides you with written authorization for the employee to return to work. The SAP will determine if the employee has been following his/her treatment recommendations and is prepared to return – this really minimizes employer risk since you’re not having to make a judgment call on if/when the employee can return

3) Execute a “Last Chance Agreement” with the employee – make sure that the employee is aware of and agrees to the condition that any future violations of the substance abuse policy (including another positive result) will automatically result in termination; a second chance may be fine, but a third or fourth chance should not be

4) Ensure that the employee takes a Return to Duty alcohol/drug test and tests negative prior to starting work again

5) Enroll the employee in a “Follow-Up Testing” program – with one positive test result on file, the employee has proven to be a higher risk. You should be testing the employee regularly and more often than others to make sure they do not continue to pose a threat to the workplace. The SAP will typically advise you on the frequency and duration of the follow-up testing program. For instance, DOT regulations specify that follow-up testing requirements would be defined by the SAP, but must be in place from one to five years and include a minimum of six tests in the first year.

Factors in Assessing Discipline

The important “big picture” point is that, as an employer, you articulate in policy and practice the standards for disciplinary action. The actual standards may depend on factors such as:

a) Statutory or regulatory restrictions

b) Organizational culture

c) Industry and risk levels

d) Employee performance

For more information about setting appropriate consequences for policy violations, contact WorkforceQA by clicking here.

In our next installment of this blog series, we’ll consider Factor #6: Baseline Testing – should employers starting a new drug testing program consider “baseline testing” all current employees?