Q. We are a small but growing construction company, and we don’t have formal policies in place. Recently, one of our employees was involved in an accident at a construction site. This is his third accident. After the second time, we had him sign a warning notice that said he’d be terminated if it happened again. We sent him for drug testing after this third accident and he came back positive for cocaine. We want to terminate him. But we suspended another worker who tested positive for marijuana. Can we fire him? —B.O., Pennsylvania
A. Fire him. When someone working on a construction site tests positive for cocaine, we'd terminate first and ask questions later. We have no problem with being more lenient for marijuana than cocaine. Indeed, they are very different drugs. We're assuming that your company hasn't been lenient in the past for cocaine use involving other employees.
We would make clear in the termination letter that the reasons for termination are the positive drug use and the three accidents. Any other explanation would ring less than true to a judge or jury scrutinizing this situation.
Your question also highlights an obvious gap: You have no formal policies in place. It’s vital to create legally sound policies and an employee handbook.