We drug test new hires at my company. When a potential employee’s test comes back positive it’s easy enough to rescind the offer, but we had a candidate have a test returned “negative but diluted” and we rescinded the offer. The candidate had already given two weeks’ notice at his current company and they won’t take him back. Did we do the right thing?
No, you didn’t.
Sorry to be blunt. I’m not a huge fan of drug testing for jobs that don’t involve safety issues — like driving a vehicle or working with chemicals. I don’t know what this job is, though, and I also know that drug testing is extremely common, so that’s not the source of my complaint. I am going to complain about withdrawing an offer because of a “negative but diluted” sample.
There are two reasons a diluted sample happens: One is that the person knows he has drugs in his system so he drinks and drinks and drinks in the hopes he can wash it all out. The other is that the person is afraid he won’t be able to pee on command so he drinks and drinks and drinks. The result is the same — a very watered down pee sample.
It’s certainly possible to be a drug user and pass on a negative-diluted sample, so you are right to be cautious, but you don’t want to lose a great candidate who was well-hydrated because of such a test.
What I would recommend is in the case of a negative-dilute drug test, you inform the candidate and offer retesting of the hair follicle — a much more accurate test — at his expense. You promise that if he passes you will reimburse him for the cost, and then do so. A candidate who has been using illegal drugs knows he’ll fail a hair test and will back out at this point. An innocent candidate will take you up on the test. If the candidate passes, the cost of a hair follicle test is significantly cheaper than the cost of finding a new candidate. So, it’s well worth it.
What is Your Goal In Testing?
As long as I have your attention, let’s talk about your goals in drug testing. If your candidates will drive trucks, have access to narcotics or have another responsibility that could spell disaster if they were even tempted to use illegal drugs, then you should absolutely be testing for drug use. Even though recreational marijuana is legal in California, employers can still choose to test for it and maintain a drug-free workforce. (Keep in mind, federal law still prohibits marijuana usage, so consume at your own risk.)
But, if your employees will sit behind a computer all day, drug use may not be worth your time, effort and expense to test. In fact, even the FBI and Secret Service don’t require hires to have a history perfectly clean of drug use. (You can’t, of course, be an active user.)
Many of your competitors have a simple ‘don’t ask, don’t tell policy’ when it comes to drugs. If you’re competing with these firms for candidates, your strict policies will limit your candidate pool. That’s fine if it’s important to you — and to a lot of people it is important. There are definite problems with drug-using employees. If they stop using a substance purely recreationally and become addicted, it can result in serious problems in their lives, which can transfer to your business.
Additionally, the Americans with Disabilities Act considers drug addiction a legitimate disability, which means you’ll need to provide a reasonable accommodation for an addicted employee. This can mean you must hold a job for someone who is going through drug treatment. It does not, however, mean you have to keep an active drug user on the payroll.
Another problem you can run into with a ‘don’t ask, don’t tell’ drug policy is that you need to be extra careful that you’re not discriminating on the basis of race. Employee A is acting funny so you send him for a drug test. Employee B is acting funny, but you know he’s going through a rough break up, so you let it go. You might be logical in your assumptions, but if Employee A is black and Employee B is white, you could have to defend against allegations of racial discrimination.
So, if you want to test for drugs, figure out before you send someone to the lab how you will proceed with a negative-dilute sample — then treat all candidates the same. If you want to implement testing on active employees, set a policy for what will and will not result from a failed or inconclusive drug test. Don’t ever decide on the fly — that sets you up for problems.
Navigating drug policy isn’t easy. Make sure your policies fulfill your business needs.
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