Second Chance or Termination after Positive Drug Test?

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When an employee has a positive drug test or alcohol test, employers are faced with the difficult question of returning the employee to duty or terminating the employee. Depending on the state(s) in which the employer operates and the industry in which they work, employers are provided guidance as to what their next steps should be thanks to applicable regulations and/or laws.

DOT-Regulated Employers

Employers regulated by the federal Department of Transportation (DOT) for drug testing and alcohol testing must use 49 CFR Part 40 (Part 40) when a positive drug test arises. While Part 40 gives no guidance as to specific employment actions that employers should take in the case of a verified positive test, employers are given guidance that their primary role is to immediately remove employees from performing DOT safety-sensitive jobs and provide the employee with a list of qualified Substance Abuse Professionals (SAPs). If the employer does choose to offer an employee the opportunity to return to a safety-sensitive position following a positive test, before the employee can return to duty the employer must:

• Ensure that the employee received an SAP evaluation, and;
• Ensure that the employee successfully complied with the SAP’s evaluation recommendations.

Full guidance for DOT-regulated employers can be found in Part 40. Part 40 does not provide guidance for the employer on how to discipline the employee.  This guidance must come from the employer’s non-DOT policy.  The non-DOT policy must comply with the mandatory laws in each state in which the employer operates and any voluntary laws the employer choses to comply with in those states.

General State Laws Surrounding Positive Drug Test Results

Many states provide guidance as to what steps an employer can take after an employee returns a positive drug test result, however, not many give strict steps that an employer must follow. The following states, industries, and/or cities have laws that specifically permit disciplinary procedures and/or termination after a positive test result:

Alaska, (voluntary), Arizona (voluntary), Arkansas (voluntary) California San Francisco (mandatory), Colorado Boulder (mandatory), Connecticut (mandatory), Florida (voluntary), Georgia (voluntary), Idaho (voluntary), Illinois Public Works (mandatory), Indiana Child Care (mandatory), Indiana Public Works (mandatory), Iowa (mandatory), Kentucky (voluntary), Maine (mandatory), Minnesota (mandatory), Montana (mandatory), Nebraska (mandatory), Ohio (voluntary), Oklahoma (mandatory), Rhode Island (mandatory), Tennessee (voluntary), Utah (voluntary), Vermont (mandatory), West Virginia (mandatory), West Virginia Mining (mandatory), West Virginia Public Works (mandatory), Wisconsin Public Works (mandatory), and Wyoming

Employer decisions about second chances and/or terminations following a positive test result should take into account all applicable state laws, federal regulations, existing collective bargaining agreements, company culture, and the nature of the employee’s work before taking any action. Additionally, employers should review their policy to ensure that they are in compliance with any direction given in the policy.

States with Special Guidance

Although over half of the states in the U.S. provide some sort of guidance as to when and/or why discipline and/or termination following a positive test result is permitted, some provide more guidance than others. Arkansas’ voluntary law, for example, specifies that before any disciplinary procedures can be taken, employers must have the positive test result verified by a Medical Review Officer (MRO). Additionally, the law dictates that an employer cannot discharge, discipline, and/or discriminate against an employee solely based on that employee seeking treatment for a drug or alcohol related problem if the employee has not previously tested positive for drug or alcohol abuse, entered an Employee Assistance Program (EAP), or rehabilitation program.

Ohio’s voluntary law is based on a sliding scale – employers can choose to comply at a basic or advanced level. Employers who choose to comply with the voluntary law at an advanced level are expected to have a greater commitment to employee assistance, however, it is not mandatory for these employers to offer rehabilitation should an employee fail a drug test. Additionally, advanced level employers are only allowed to terminate an employee for a first time positive and remain compliant with the advanced voluntary program if they can present a compelling reason for the termination (e.g. the employee is in a safety-sensitive or special needs position). Under the Ohio voluntary program, basic employers are not allowed to terminate an employee following a positive test result.

Minnesota’s mandatory law also provides special guidance for employers who wish to take disciplinary action and/or terminate based on a positive test result in the state. Employers are prohibited from terminating an employee for his/her first confirmed positive drug or alcohol test unless the employer has given the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, either a drug or alcohol counseling or rehabilitation program as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of chemical dependency. Employers may discharge an employee who refuses to participate in counseling or rehabilitation, has failed to successfully complete the program as evidenced by withdrawal from the program before its completion, or has a positive test result on a confirmatory test after completing the rehabilitation program.

Many other states provide specific steps that an employer must take before s/he takes disciplinary action(s) and/or terminates following a positive test result. Employers should carefully consult state laws and federal regulations before taking any action in order to ensure compliance with all applicable laws and regulations.