If your employee fails his or her drug test, always assess if they are covered by ADA anti-discrimination provision before taking any adverse actions.
EEOC recently filed a lawsuit against a company in Texas after it terminated an employee who was taking methadone as part of a prescribed treatment program. After the employee drug and alcohol test came back positive, he provided a copy of his prescription and information about his treatment. Nevertheless, the company terminated his employment. Big mistake.
The EEOC Enforcement Guidance suggests the following course of action (except where you can show a concern for public safety):
ask an employee whether she or he currently is taking any prescription drugs or medications;
ask an employee whether he or she has taken any prescription drugs or medications in the past; or
monitor taking of prescription drugs or medications.
Even if prescription drug usage may affect the safe performance of the job, you should not automatically prevent the employee from performing the job based only on the employee’s use of the medication. Show your analysis and individualized assessment of the employee's situation to determine whether the individual can safely perform the essential functions of her/his position with or without reasonable accommodation.
If you have any questions on how to perform an assessment, contact your trusted on demand general counsel service.