Q&A: Hiring before receipt of drug test and background check is risky

Question: Our company is struggling to find workers and keep operations running efficiently. All employment offers are conditioned on passing a preemployment drug screen and background check. We’ve been allowing new hires to start working before we receive the results from our third-party vendors. We just learned that an employee who has been working for a week failed the pre-hire drug screen. Can we fire him?

Answer: Review your drug and alcohol policy and call your Vigilant Law Group employment attorney before taking any action. If your offer letter states that the offer of employment is conditioned upon passing a drug test and background check, then the candidate should not be hired (or start work) before both conditions are met. A good argument can be made that the company waived both conditions by allowing the individual to start working without having satisfied them. If a candidate fails a drug test, you can withdraw the offer and move on to another candidate. Once an individual is hired, the employee has greater protections and is subject to company policies, not the offer letter. Also, think about the reasons behind your preemployment drug testing policy—if it’s safety, then allowing an individual to start work before you receive their test results undercuts your safety objectives.

If your drug and alcohol policy says that employees will be tested for the presence of drugs or alcohol based on reasonable suspicion, then you should follow your policy. Failing a pre-hire drug test from a sample collected a week ago isn’t sufficient on its own to establish reasonable suspicion that the employee is currently impaired on the job and poses a safety risk. In the absence of direct evidence of impairment on the job or another violation, the best course of action may be to review your drug and alcohol policy with the employee and instruct your managers on how to watch for physical signs of current illegal drug use, which may trigger a reasonable suspicion test. For more information, see our Legal Guide, ADA: Medical Inquiries and Exams of Applicants and Employees, and Model Policy, Drug and Alcohol Policy, or call your Vigilant Law Group employment attorney.