With drug testing often being included in an employee’s contract of employment, there is the possibility that one day the test comes back positive, which means their employer has a very important decision to make. The options that are available to the employer range from termination, with the possibility of taking legal action against the individual, through to supporting them wholeheartedly which may even include them offering to pay for their employee’s drug rehab program.
If you own or run a business and have never had to face the reality of finding out a member of your staff is taking drugs, then if it does happen you might be shocked, and this runs the risk of you making a decision in haste. Instead, it is preferable that you are prepared in advance for this situation, and that means understanding what your options are, and what the consequences of each of them are.
The first thing you should focus on is checking whether or not the terms and conditions of the contracts which your employees have signed cover the misuse of drugs and what might happen if they fail a drug test. Regardless of how lenient or how severe you might wish any action that you could take against the individual to be, you are walking into a legal minefield if there are no policies regarding drug use specified in their terms and conditions.
Now, common sense tells us that drug use is not desirable, but you will not simply be able to dismiss someone if that is the action you choose, if nothing in their contract of employment forbids them from doing so. In fact, even requiring them to take a drug test, when no such requirement exists in employment contracts provides you with another legal headache, as you might find staff simply refuse to take one, and in most cases, they would be within their rights to do so.
Moving on, and assuming you either have or plan to, make your drug use policy within your employment contracts clear and legally watertight, we now come to what you might do if a member of staff fails a drug test. Obviously how severe this will be may differ from industry to industry and will be influenced by how much someone’s ability to fulfill a particular role is impacted by drug use.
As for what action you might take if an employee were to test positive for drug use, these tend to fall into 3 categories which are dismissal, sanctions, and rehabilitation, with the latter two categories often coinciding with each other.
Taking dismissal first, this might apply immediately if a company has a strict no drugs policy and the employee in question was in a position of high responsibility. Alternatively, dismissal might occur as a last resort if the person had been given every opportunity to reform, had been given company-funded drug rehabilitation, but had ultimately been unable or unwilling to become drugs-free.
Sanctions can include the person going through the company’s standard disciplinary procedure, and instead of being dismissed, they are given a second chance. This could include a requirement on them to join a drug recovery program and to submit to be drug tested regularly.
Some employers might take a more lenient approach, and whilst they will require the person to undertake treatment for their addiction, they do not put it under the umbrella of a disciplinary process, but instead regard it as rehabilitation, which the employer might also be prepared to fund.
