confusionIf you’re one of the many companies implementing random drug testing programs for the first time, it’s a common question. And a good one. What do you do if an employee fails a drug test?

The simple answer is, “It’s up to you.”

Pretty empowering, I think. The employer gets to decide.


Your choices are pretty simple. You can terminate the offender immediately, or you can offer a second chance. “Second chance” does not mean he pees again. It means he has a chance to seek treatment and earn his job back.

A matter of policy

But here’s the thing: You can’t decide on a case by case basis. It needs to be outlined in a clearly written substance abuse policy and you need to treat all employees the same way. A good policy will describe what a second chance is, if you offer it. Or it will describe the termination penalty if that’s the option. Policy violations are easy to identify and a simple matter to enforce. Keep that in mind if you live in a state where some form of legalized marijuana exists (like Illinois).

Random vs. pre-employment

Let’s step back and clarify a bit. Many companies do only pre-employment tests. If someone fails, it’s an easy decision: Withdraw the offer of employment. Random testing, on the other hand, is designed to deter substance abuse among an existing workforce. Who really wants to sit next to someone who’s abusing drugs? In a safety-sensitive work environment, someone can get hurt. Or in an office, mistakes are made, and someone gets to mop up. Random testing is intended to keep the workplace safe for everyone. It’s an effective deterrent.

If someone fails a drug test for an illegal substance, is it reported to police?

Some have asked this very reasonable question. The short answer is no. The labs don’t report it. We don’t report it. And most employers don’t report it. Drug and alcohol testing in the workplace is not about right and wrong, legal and illegal. It’s about safety and company culture.

If an employee has an auto accident while on duty and is found to be impaired, don’t I face some liability as an employer?

Sure you do. But it’s the same liability as if she were sober. Actually, that’s not entirely true. In Illinois, workers comp law enacted in 2011 can help employers who test for drugs and alcohol following an accident. If an employer can show that an employee was under the influence of drugs or alcohol at the time of an accident, the burden shifts to the injured employee to show that the substance was NOT the proximate cause of the accident. That’s some heavy lifting. Legal professionals tell me that an employer with a drug testing program will have a much better chance defending any claim. You should consult your own legal counsel to see how it may affect you.

So do I get a break on my workers comp premiums if my company drug tests?

In some states, the answer is a very clear “yes,” as the law mandates it. In Illinois, though, it depends on the insurance provider. Some do and some don’t. If yours does not, and you implement a drug testing program, it’s likely your mod rate will go down over time, and you will see the results in your premiums. It’s best to ask your insurance provider.

Is drug testing expensive?

How expensive is a workers comp claim? What does it cost to redo work messed up by someone who isn’t “sharp” today? What does turnover or absenteeism cost? Or theft? For less than $60 per test for most tests, you get some valuable assurances and peace of mind.

InOut Labs can help you with the testing. If you’re in the market for workers comp insurance or a well-written policy, let us know. We’re happy to connect you with folks who can help.