The ever-present threat of litigation can turn seemingly simple situations into harrowing ethical dilemmas. Consider this reader's question:
We liked a temp and offered him a full-time job. He accepted but then failed the drug test that we require all new hires to pass. I'll alert the agency not to send him to us in the future. But should I say why? I don't want to violate his privacy by divulging the results, but at the same time I don't want him to get in a potentially lethal accident at future temp jobs.
We asked an employment attorney, David Wachtel, to address this issue. He's a partner at Bernabei & Wachtel, a Washington, D.C., law firm.
Wachtel: My advice is not to tell the temp company. If you tell the company, you could prevent the employee from getting work from that agency in the future. You should know the facts thoroughly before you take such a step. Is it possible that the employee had a false positive? Some lawful HIV drugs, for example, cause patients to have a false positive on drug tests. But then what of the potential "lethal accident" at future temp jobs? This temp employee is capable of doing some kind of work properly and presumably safely. He worked for your company well enough for you to offer him a job. This question would come into sharper focus if we knew the type of work the temp is likely to do in future jobs. Is he likely to drive trucks or operate heavy machinery? There are only a few circumstances in which an employer has a legal duty to warn future employers about a potentially dangerous employee. One of the exceptional cases arose when a California school district failed to warn other school districts about a sexual predator.Lessons Learned
Wachtel's advice highlights the need to balance your concern forand accident prevention with an individual's privacy rights. If you act based on faulty information, you can do more harm than good. That's why comprehensive fact-gathering is so crucial.
A range of variables should govern your response to an employee's failed drug test:
State and municipal laws. Drug testing laws can vary by state or by county. Managers should consult an attorney when weighing how to handle an employee's failed drug test and whom to notify.
Company policy. Some employers have a mandatory zero-tolerance policy for drug use. Others prefer to give a second chance to individuals who fail a drug test, perhaps by advising the employee to attend a treatment program or providing a referral to an(EAP). Workers who refuse to seek help may face termination.
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