Excerpted from Tennessee Employment Law Letter, written by the law firm Miller & Martin      http://www.HRhero.com/tnemp.shtml?HLe

You've initiated a drug-testing program to curtail your employees' use and abuse of alcohol and illegal drugs.  You'd like to believe the policy itself would scare employees into a clean and sober lifestyle. Inevitably, however, someone is going to test positive. What do you do now? Read on.

Your Testing Policy

You're the HR director at a large hospital, and you learn a routine drug test on one of the registered nurses has just come back positive. You want to protect patients, be compassionate to an employee whose job is in danger, and stay on solid legal ground. What are your choices?

A. Fire the nurse immediately. The only thing that really matters is getting rid of the risk the nurse poses.

B. Suspend the nurse immediately, and order a second test on the same sample to confirm or discredit the initial test. If the results are still positive for drug use, call in the nurse and offer the chance to use your employee assistance program to get rehabilitation.  Keep the suspension in force pending completion of rehab and a clean drug test. Fire the nurse if he doesn't agree to your terms.

C. You're already struggling to keep enough nurses on the floor without forcing unreasonable overtime. If the nurse has an otherwise clean record, offer your employee assistance program and keep him working but administer frequent drug tests. If another one comes back positive, fire him.

The best choice depends on the drug policy you have and whether you've enforced it consistently in the past. So if your policy says that when an employee tests positive for drugs, he or she will be fired and if you have enforced the policy consistently, the best choice is (A): Fire the nurse immediately.

Employers have mixed approaches to the kind of policy they have on this subject. Some have a strict zero-tolerance policy - that's particularly true in the case of hospitals and other health care organizations because a nurse using illegal drugs can subject the hospital to significant potential liability when it comes to the care and treatment of patients. On the other hand, some employers take a more "compassionate" approach and are willing to allow their employees to get treatment for a drug problem (through an employee assistance program, for example) before firing occurs.

If you have a policy along those lines, the best choice would be a modified (B): suspension with the condition of completing a rehab/treatment program before returning to work. Another condition ordinarily would be submitting to random drug tests for some period of time - perhaps a year. It would be best not to order a second test. If the drug test is done properly in the first place, the initial positive is confirmed by a more sophisticated test as part of the drug test itself. Allowing second tests to be done ordinarily isn't a good practice. Once you allow it, then every employee who tests positive will want another test done.

Choice (C) isn't a good basis for determining the kind of drug policy to have or how it will be enforced. You may be having the manpower problem described in (C), but that shouldn't drive the kind of policy you decide to have.

Here are Three Other Points to Consider:

First, private employers have more discretion than public or government-related employers on the kind of drug policy (particularly as the policy relates to drug testing) that can be implemented.

Second, because of the nuances of this subject, it's best to obtain legal advice when crafting a drug policy.

Third, to repeat something stated early on, it's imperative that drug policies be enforced consistently.  If you decide to change your policy, give everyone notice, and if at all possible, try to avoid testing the new policy on protected employees.

For instance, if you let positive tests slide or sent employees to rehab in the past but you decide to suddenly "get tough" and fire an employee who happens to be of a different race than all the other employees who tested positive or who has recently engaged in protected activity, such as whistle blowing or filing a workers' comp claim, you're pretty much asking for a lawsuit.

Copyright 2005 M. Lee Smith Publishers LLC. This article is excerpted from Tennessee Employment Law Letter. Read more about the print newsletter and the Tennessee attorneys who write it: http://www.HRhero.com/tnemp.shtml?HLe