Allen & Gooch Blog

Employment Law & Litigation

Drug Testing: Is Zero Tolerance Still the Best Policy?

Drug Testing: Is Zero Tolerance Still the Best Policy?

Our company maintains a drug-free workplace. Our business has zero tolerance for drug use. An employee’s positive drug screen equals termination. While this has been a common practice for employers, the landscape surrounding drug testing is changing and is an area that merits continued monitoring by employers.

For example, medical marijuana can be legally prescribed at the state level, but under federal law, it is still treated like every other controlled substance. It is still considered as a Schedule I drug under the Controlled Substances Act.

Not only is there the continuing evolution of state law on marijuana (medical and otherwise), but employees may also be using prescription medications, such as suboxone, that appear as a positive drug screen but are legally prescribed.

Employers still have a substantial interest in an effective drug testing policy because of safety concerns on the jobs, but an improper termination may be more costly. Therefore, it is important for employers to keep the following points in mind:

  1. Job Descriptions: Employers should utilize job descriptions to identify essential job functions. The essential job functions will help employers articulate when safety is a concern for a particular position. A positive drug screen for this type of safety-sensitive position may require more substantial disciplinary action.
  2. Utilize Medical Review Officers (MRO): A MRO is a person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results. The MRO can assist the employer in verifying legally prescribed medications and to aid an employer in determining when zero tolerance may not be the correct course of action.
  3. Privacy: If you are a multi-state employer, it is crucial to stay aware of the changing landscape with respect to the laws on prescription drugs (including medical cannabis). Compliance with state drug testing laws is also important from the testing side as there may be restrictions on employee privacy.
  4. ADA/FMLA: Current substance abuse is not protected by the ADA. If a failed drug test resulted from the legal use of a prescription drug and the drug will not prevent the employee from performing the essential functions of the job, the employer may need to provide accommodation for the employee. A zero tolerance policy in this case may expose the company to additional liability.
    Not only should an employer be aware of the ADA, the FMLA recognizes that treatment for substance abuse may be a serious health condition. The FMLA, like the ADA, does not protect current substance abuse, and an employee may be terminated in a non-discriminatory manner in accordance with its established drug policy. An employer should be aware of the distinction between substance abuse and treatment for substance abuse.

Zero tolerance is still the goal to promote a healthy and safe work environment. In certain circumstances, a positive drug screen may occur with prescribed medication, and there is a need for flexibility in the drug testing policy to assess the employee’s situation on a case-by-case analysis. A drug testing policy is still an essential piece of a company handbook, but it should be crafted carefully to comply with the changing landscape of state laws.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.