This is a summary of a blog post by JDUPRA involving what happens when an employee fails a drug test. We encourage you to read the article in its entirety if you want to know what to do when an employee fails a drug test.
An employee named Suzie was diagnosed with attention deficit and hyperactivity disorder and had been on prescription Adderall since 2019. Adderall is an amphetamine. When Suzie began taking Adderall, she promptly notified her supervisor (we’ll call him “Jason”) as well as Human Resources about her ADHD condition and the Adderall. The information was noted in her file.
Way to go, Suzie!
Suzie allegedly began having some unspecified attendance and disciplinary issues. Then, Jason reported that her office was smelling like weed, and I don’t mean crabgrass. He requested permission from the powers that be to send her for a “for cause” drug test.
(In the applicable state, some medical marijuana use is legal, but recreational use is still illegal.)
The request for a “for-cause test” was granted, and Suzie was suspended with pay pending the outcome.
Jason drove Suzie to the drug testing facility, [R&A Comment – It is most important for someone other than the employee drive the employee to a drug test. See this blog post for more information.] and she told him that she was afraid her Adderall might cause her to have a positive test result. Jason replied that, if the Adderall was the only drug that showed up on the result, she would be fine. [R&A Comment – as we explain in this blog post that it is a business best practice to have a Medical Review Officer in your drug testing program.
Good answer, Jason!
Suzie underwent the test, which came back positive for amphetamines.
The Medical Review Officer’s procedure for positive drug tests was for the MRO to contact the donor and try to determine whether the positive result might have been caused by a legal medication or substance.
Good procedure, MRO!
The Department policy said that HR was supposed to try to contact the employee and warn that serious consequences would ensue if the employee did not contact the MRO.
In this case, the MRO made the required three attempts and got no response.
Of course, Suzie was fired for failing her drug test. Then she sued the Department, claiming disability discrimination and failure to accommodate her ADHD condition.
Last week, a federal judge granted summary judgment to the Department on Suzie’s discrimination claims. But he said that her “failure to accommodate” claims should go to a jury.
Here is where the court was coming from:
Jason knew Suzie had ADHD that required her to (legally) take prescription Adderall, an amphetamine. HR also knew this.
Suzie apparently tested negative for marijuana but positive for amphetamines, just as she had feared.
The Department failed to follow its own policy regarding contacting an employee who had tested positive. Failing to follow your own policy without a good reason is not cool. [R&A Comment – IT IS MOST IMPORTANT that a company not only follow its policy but implement the policy in a consistent manner.]
The Department made no effort to determine whether the legal Adderall that Suzie was taking for a legitimate medical condition might have caused her positive result.
Employers, the morals of the story are these:
- If an employee has a disability, and you know that he or she is taking a legal medication for it that could have caused a positive drug test result, you are expected to try to accommodate the employee. That could mean treating the positive result as if it were a negative result.
- Make sure your supervisors understand this and the importance of referring all drug testing issues to HR or your medical department, if you have one. Supervisor training may be required to get the point across.
- Follow your policies and procedures.
- If your employee has disclosed that he or she is on legal prescription medications, and then that employee tests positive for illegal drugs, do follow up with both the MRO and with the employee. If the MRO confirms that the legal medication could have caused the positive result, give the employee the benefit of the doubt.
Written by: Constangy, Brooks, Smith & Prophete, LLP
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.336.0287 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
