Drug abuse policy
6304153
4 Posts
Hi everyone,
I am new to a small company that handles security officers on different job sites. In attempting to update their existing drug abuse policy some things have come up that I am unsure of how to proceed.
There was an episode (very recent) of an employee that was abusing and failed a drug screen. The employee was told by her immediate supervisor that if she completed a rehab program she would maintain her position, so she did and they felt obligated to return her to work. However, key management would like a zero tolerance with no mandatory rehire mentioned. Could this not come up at some later date?
Another question they have is are they required to backpay any employee that has a positive screen here and another is negative for any time lost due to disciplinary action. I would think so, since the employee has proved they are not at fault, but can someone please clarify for me if possible.
Any help would be appreciated, as you can tell, this is not my area of expertise, but I am trying to make some headway.
Comments
I suggest working with an attorney familiar with employment policies on this one. Mostly because of the interaction that can happen with FMLA and ADA for seeking treatment. For example, inpatient treatment can fall under FMLA where the person WOULD have job protection. But it is my understanding that FMLA/ADA only apply IF the employee is getting treatment, not if they are a chronic drug abuser.
"An employee may take FMLA leave to seek treatment for drug abuse, however, if the employer has a uniformly applied policy that has been communicated to all the employees, the employer may terminate the employee who has engaged in unacceptable use of drugs, contrary to the employer's policy, despite the fact that the employee is on FMLA leave.
Similarly, a trucking company may have a uniformly applied policy communicated to all employees that a truck driver who fails Department of Transportation required random drug testing will be terminated. A driver is tested and knows he will fail the test when the results become available because he has used drugs. After taking the test he immediately requests FMLA leave to obtain treatment for drug abuse. After leave has begun the employer learns that the employee failed the drug test. The employee may be terminated pursuant to the employer's policy. See Regulations 29 CFR Part 825.112(a). " from http://www.dol.gov/elaws/esa/fmla/eb6.asp --> You have to be careful here, because the DOT does have more stringent drug testing requirements than a normal business. Hence the suggestion to get counsel's advice....because one situation may not automatically apply to another.
I would also suggest reading through this link: http://www.dol.gov/asp/programs/drugs/workingpartners/regs/ada.asp to see how it interacts with ADA.