FAILED DRUG TEST, HELP?

HENRY · March 2003

WE HAVE 3 TOP MANAGERS WHO FAILED A RECENT RANDOM DRUG TEST, THE OWNER RELIEVED THEM OF THERE POSITION AND WERE TOLD TO GO GET CLEANED UP AND GET TREATED.
MY QUESTIONS IS, LOOKS LIKE THEY WILL BE OUT FOR WEEKS MAYBE EVEN 2 MONTHS, SO WHEN THEY COME BACK, DO WE STILL HAVE TO HAVE THERE POSITIONS OPEN FOR THEM. OR CAN WE PLACE THEM IN A DIFFERENT POSITION. NON OF THIS WAS DISCUSSED WHEN THEY WERE RELIEVED, SIMPLY THEY ADMITTED TO THEIR DRUG HABIT AND WERE TOLD IF THEY WANTED TO CONTINUE WORKING HERE THEY WOULD NEED TO GET TREATED AND CLEANED UP AND PASS THE DRUG TEST AGAIN. WHAT I'M THINKING IS IT WON'T BE FAIR TO THOSE OTHER MANAGERS THAT HAVE TO COVER FOR THEM AND THEN RETURN THEM TO THERE OLD POSITIONS WHEN AND IF THESE GUYS COME BACK.
YOUR SUGGESTIONS / HELP IS GREATLY APPRECIATED.
HENRY
FROM TEXAS

ray a · March 2003

Our company policy is to terminate the employment of anyone who fails a drug screen, regardless of position. We tell them at the time of termination they will eligible for rehire if certain qualifications are met. First, they must successfully complete a rehab program with an approved provider. Second, there must be an open position available, we do not hold positions for them. Last, they must agree to be tested monthly for as long as we feel it is necessary.

So far, no one in management has failed a drug screen. I asked my boss one time what would happen if a director tested positive... he smiled and said we would cross that bridge when we came to it.

Steve McElfresh · March 2003

Assuming Texas is an at will state (and I strongly suspect it is), whether you "have to" put them in their old jobs is probably entirely dependent on your policies and practices -- including any apparent assurances given them when they were relieved of work.

You probably ought review the circumstances with labor counsel if you have any uncertainty about what you can do.

Regards,

Steve

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

jimlegal · March 2003

Texas is an at will state. Your policies will dictate your actions. If you have a zero tolerance, drug testing policy then termination is in order. If you don't and have no other reason for termination, then be extra careful. Although Texas is an at will state, employees still file complaints. You may want to explore the health & safety issue of other employees by having drug users employed. Please do not forget that possession of drugs is against the law! If the company has knowledge of their problem, doesn't take corrective action and then law enforcement searches the company premises finds the employees drugs, think of the pandora's box this would open. Bad press. Bad public relations. Bad for all. Our policy is to terminate if you fail a drug test. Wish you well with your situation.

Down_the_Middle · March 2003

Presumably you are not a Drug Free Workplace (DFWA) employer----by virtue of your 1 strike and you're out philosophy. While I understand your intolerance for the behavior, I come to this area with a bias of working in healthcare for many years and we strive to offer one (1) comprehensive rehab effort for all employees. I can't tell you that our success ratio is all that impressive, but it seems to me it's the right thing to do and we support the federal initiative. Good luck

HR in Okla · March 2003

I don't know the Texas drug laws, but in Okla. they are VERY specific. You must offer them an EAP, at least for evaluation and referral for treatment, but they can still be terminated. Make sure you know your state laws.

jimlegal · March 2003

For futher assistance below is the Texas statute copied from the Labor Code:

§ 21.120. Use or Possession of Controlled Substance

(a) An employer does not commit an unlawful employment practice by adopting a policy prohibiting the employment of an individual who currently uses or possesses a controlled substance as defined in Schedules I and II of Section 202, Controlled Substances Act, and their subsequent amendments (21 U.S.C. Section 801 et seq.), other than the use or possession of a drug taken under the supervision of a licensed health care professional or any other use or possession authorized by the Controlled Substances Act or any other federal or state law.

(b) Subsection (a) does not apply to a policy adopted or applied with the intent to discriminate because of race, color, sex, national origin, religion, age, or disability.

Added by Acts 1995, 74th Leg., ch. 76, § 9.04(a), eff. Sept. 1, 1995.

The Texas labor code maybe found at:

[url]http://www.capitol.state.tx.us/statutes/latoc.html[/url]

I hope this assists with clarification and your situation.

Balloonman · March 2003

I have found that most long term drug users do not ever clean up. I have had them say they will not stop smoking. Marijuana has been the #1 drug of abuse everywhere I have worked.
Check your policies. Myself, I like terminating over rehabing. But that is me.
My $0.02 worth.
DJ The Balloonman

Margaret Morford · March 2003

Okay, I'm going to weigh in the other way. The managers were told that if they cleaned up, they could come back to work. I think you should take them back so that your management has some credibility. You do not have to take them back in the same job - unless you have had this situation before and taken the previous employees back into the same job. In which case, you've probably established a precedent that you are stuck with until you publicize a new policy for handling these situations going forward. I'd bring them back into a different job and subject them to random drug screens over the next year or so. Make them sign a written document agreeing to that.

I also agree with Steve. You need some legal advice. Is your promise by management if they got cleaned up, they could come back to work an employment contract of any kind? If you don't have specialized employment legal counsel, Mike Maslanka and Theresa Gegen (who answer a lot of questions on the Forum) are Texas attorneys and excellent! They've bailed out more than one of my clients!

With regard to what you do going forward, you need a policy. I've got a sample drug policy I'll send you (if you want it and e-mail me) that allows for just about everything. If you decide to go with the one strike and you're out rule, I would suggest that you allow any employees that comes forward (prior to being choosen for a random drug screen) and admit they have a problem to be eligible for a leave of absence for rehab and to return to their original job. You don't want to discourage your employees from getting help. What little time off that is spent in rehab is far out weighed by salvaging an employee that has a lot of organizational knowledge and skill. Rehab is certainly better than having to recruit and train a replacement.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Leslie · March 2003

About six months ago, we went from a Drug Free Workplace type policy - rehab vs. term - to one strike and you're done. I have admistered this program for more than six years and I have to tell you the one strike and you're done is impossible to work with. So far I have had to discharge good employees of eight years and almost 10 - employees I previously could have helped and kept employed. In the past, it was about 50% who went through the program, stayed and never got that second positive, and 50% who either left before they could get the second, or actually got it. I didn't mind the odds.

Nrdgrrl · March 2003

I'm new here, but I thought I'd toss in my two cents.

Regardless of the drug policy at the company, couldn't these associates claim that they are covered under the ADA and that a reasonable accommodation would be to give them a 12 week FML? I know FML covers drug rehab, but of course the company would have to meet the FML eligibility.

Thoughts?

Down_the_Middle · March 2003

Nrdgrrl:

Keep in mind that current users of illegal drugs are not covered by ADA and while alcohol IS an ADA disability, this person has the same performance expectations of other employees. FMLA applies if treatment has been initiated by the individual. Your point is well taken if the individual pursues rehab/treatment, altho it appears that many employers are not choosing that option and imposing the 1 strike rule. It is a tough call, but once you find success with the rehab feature, it's hard to generalize all substance abusers as lost causes.

pecohr · March 2003

If the owner wishes to keep these employees at the very least I would put them on a last chance agreement(search on the web for examples). If they violate the established agreement i.e. fail random UA's then they've had their chance, failed and are available to fill their spot in line at the unemployment office.

Leslie · March 2003

When we had a two step program, the first positive was a maximum month suspension with a required clean return to work test within that time frame. They had to comply with mandatory monthly testing for a year, and a minimum four visits with the EAP.

Pork · March 2003

Henry: It appears to me that any prior drug use policy in place before this event has just been thrown out the window for the benefit of the management side of the business. Additionally, you have now thrown this situation into an ADA category based purely on your senior leaders action. You are treating them as if they had a disability and now you must live within your situation. The boss promised them X for Y and now you have got to produce the Y. Termination and consider for rehire after the individual had successfully completed the rehab program. Good Luck Pork

Balloonman · March 2003

Henry listen to Pork. Terminate them, immediately, and let them know they may reapply in the future. Talk to the owner, I would like to know if he really would want to keep employees that fail drug tests. If he insists that they be allowed to return, then you need to write up a last chance agreement, outline both scheduled and RANDOM tests that they must agree to for at least say 3 years. I also include in my last chance agreement that they will not be paid for the time missed while taking the test, and the employee must pay for any failed tests.
My $0.02 worth.
DJ The Balloonman

LindaS · March 2003

Our substance abuse policy states that an employee who has failed a drug or alcohol screen (we have a fitness for duty) must immediately be referred to the EAP, follow any treatment they recommend and are subject to random tests for one year. Our president is a HUGE advocate of this program as he is a recovering alcoholic and went through treatment more than once before it worked. I DO NOT agree with the posts regarding terminating the employees. If these are good managers and are willing to undergo treatment they should be allowed to keep their jobs.

Uncas · March 2003

We are currently dealing with a similar problem. Our substance abuse policy provides for "1 strike", if an employee admits the problem and agrees to seek treatment/counseling through our EAP. Employees who test positive based on "reasonable suspicion" are given a one-time medical leave of absence to complete treatment and clean up. We do not do random testing prior to "reasonable suspicion" due to the complications from privacy issues in CA. Once the employee tests clean they are returned to their former position and are then subject to random testing for the duration of their employment. Another positive test after the 1st strike results in immediate termination. If an employee denies use/possession and tests positive they are immediately terminated. Any employee who admits a problem and tests positive is placed on FMLA leave for treatment. The FMLA factor requires return to same or similar job position.

VanEngen · March 2003

[font size="1" color="#FF0000"]LAST EDITED ON 03-28-03 AT 09:07AM (CST)[/font][p]Retracted

FAILED DRUG TEST, HELP?

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