Before hiring a Consumer Reporting Agency CRA like GoodHire to perform drug screening, employers should have their own drug policies drafted first and in place for at least 30 days. Companies should also consult their legal counsel to draft these policies. Federal laws like the Civil Rights Act of and the Americans with Disabilities Act of prohibit discrimination against candidates and employees based on a prior history of drug abuse or enrollment in rehabilitation programs.
They also prohibit profiling certain groups of candidates for drug testing or singling them out because they may appear to be under the influence, as it may relate to a particular disability, illness, or medical condition.
For example, in Alaska, employers can use a failed drug test as grounds for not hiring a candidate. However, that candidate has the right to explain a positive drug test within 10 days of the results. Similar to failed pre-employment drug tests, there are several different steps employers need to take if a current employee fails a drug test. For example, some companies may have a zero-tolerance drug policy and may terminate an employee for failing a drug test. If they fail a drug test, they may be referred for treatment, suspended, or removed from the job.
In other states, like Iowa, employees have the opportunity to explain or refute a failed drug test and request to be retested. No matter the state, you should always err on the side of caution and follow the appropriate next steps in any instance of a failed drug test. Under the Fair Credit Reporting Act FCRA , if employers decide not to hire a candidate or to terminate an employee on the basis of a positive drug screening result provided by a consumer reporting agency like GoodHire, employers must provide the candidate or employee with a pre- and final adverse action notice.
These documents inform employees and candidates that their failed drug test resulted in a decision to dismiss or not hire them, respectively. As an employer, if you violate this or any other adverse action step under the FCRA, your company could face costly financial penalties and lawsuits, making the cost of a drug test with help from a professional service like GoodHire well worth it.
The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws. She is a former news journalist turned digital marketing strategist and freelance copywriter.
Perhaps they'll argue that the test is wrong. Employers need to consider how they'll handle these situations. Todd Simo, chief medical officer at employment background screening firm HireRight, said the medical review process helps protect employee privacy by giving workers an opportunity to provide a reasonable, verifiable and legal medical explanation for a failed test. If the worker has an acceptable explanation for the result, the drug screen is reported to the employer as a negative test result, the same as it is reported if no drugs were found.
The number of workers who tested positive for drug use reached a year high in , and marijuana topped the list of most commonly detected illegal substances, according to drug-screening company Quest Diagnostics.
State laws vary regarding the steps employers must take after an employee fails a drug test. Pre-employment screening can be more straightforward than random and post-accident screening and tests based on reasonable suspicion.
If an employer makes a job offer contingent on passing a drug test, the offer can generally be rescinded if the applicant fails, but there may be more steps that employers must follow for current employees. For example, in Vermont and Minnesota, an employer can't fire someone for the first failed drug test if the employee agrees to complete a rehabilitation program.
Some states also require employers to provide certain notices to workers when an adverse action will be taken based on a failed drug test. In some locations, the employee must be given the opportunity to contest the results and retest. In states where marijuana is legal, employers may need to follow specific guidelines before making an adverse employment decision.
For example, in Illinois, employees must be given the opportunity to challenge the results of the test. Under federal law, employers may need to follow Fair Credit Reporting Act notice requirements if they use a background-check company to obtain the results from a drug testing lab. Employers don't have to accommodate on-the-job impairment from marijuana or prescribed drugs, but off-duty use may be protected, depending on the employee's location, circumstances and job.
An employer may be required to engage in an interactive dialogue with a worker to see if a reasonable accommodation can be made. Imagine the employee or job applicant is a registered medical marijuana patient in a state that allows cannabis use to treat a disability. The employer may need to explore possible accommodations. The employer doesn't necessarily have to approve the precise accommodation that the employee seeks, said Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles.
But engaging in an interactive dialogue "shows that the employer is mindful of the issues and might go a long way in preventing unwanted litigation," she explained. In most lawsuits that have been resolved against the business, the court noted the employer's failure to engage in any dialogue whatsoever.
Under federal and state laws, an employer may be required to engage in an interactive process with a worker who uses prescription drugs. Employers get a discount on their workmans comp insurance for maintaining a drug free work place. If they dont notify you of a failed test you should call your local workers comp office and let them know the employer isnt complying with the laws. No you cannot retake it. That would defeat the purpose of the drug test.
If you fail it you will be disqualified for a year. Nobody cares if you passed it or how noble you are. Also, yeah Never had a drug test beyond the initial hiring process. If you fail a drug test you are not able to retake and will not be considered for employment with the company. I don't believe there is another chance. Yes, right away. No you cannot retake. You must wait 1 year before applying again. Unknown - if you think you are going to fail the test why take it.
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