Drug Testing and Progressive Discipline
Drug Testing and Progressive Discipline
OVERVIEW
Week 4 provides an overview of current laws governing drug testing and progressive discipline. Most
employees and job applicants have/will be asked to take a drug test at least once in their careers. From
the employer’s perspective, illicit drug use by employees results in greater absenteeism, decreased
productivity and other negative factors. Also, many employers enact pre-employment (and sometimes
post-hiring) drug testing procedures to protect against liability for the actions of their workers.
Except for certain employers in industries that are heavily regulated by the federal government (such as
transportation, nuclear energy, and military contracting), federal law doesn’t have much to say about
drug testing. Many states — and even some local governments — do regulate drug testing, however.
Often, the rules depend on whether the employer wants to test an applicant or an employee.
There will come a time when an employee needs progressive discipline. After completing this week
readings and discussions, you should be able to discuss the principles of progressive discipline and how
these principles are applied to instances of workplace misconduct. The need for HR professionals to
develop effective policies and practices becomes important when implementing progressive discipline
practices.
Completing the readings, discussions, activities, and assignments will help you identify the questions and
inquiries that are legal or permissible—as well as those that may violate state or federal law.
LEARNING RESOURCES:
Employment Rights
Testing for illegal drugs depends on if the person is an applicant or an employee as to the guidelines to
follow. In addition, this resource discusses when a suspicion is reasonable.
Link: https://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter5-3.html
Week 4 Discussions
Watch Video: https://www.youtube.com/watch?v=eOWPg5k6mIM
Discussion Topic #1 Drug Testing in the Workplace
Today, it is quite common for employers to have random drug testing policies and procedures in place
for their employees and staff. In most cases, employees must be willing to submit to and pass a preemployment drug test and then agree to additional random drug screening throughout their
employment with the company to help ensure a drug-free work environment. However, in most cases,
the employer usually needs to have at least some level of suspicion before requiring an employee to
submit to drug testing.
And while marijuana is now legal in several states, it is still illegal on the federal level, which can
complicate things for some employers. This means that employers can still require testing and set
consequences for employees who test positive for marijuana use. These consequences can include
enrolling in a rehabilitation program, loss of benefits, and even termination. However, for an employer
to conduct legal random drug testing there are several steps they must follow.
As the HR manager, it falls upon you to create a detailed written “drug-free workplace” policy, that
provides your employer and company employees with legal protection. This policy will have to be
provided to every employee for them to refer to at any time. They must sign and date a copy of the
document providing proof that they have both read it and understood it before you place it in their
personnel file. There are states with laws in place that require employers to provide current and
potential employees with a written drug testing policy. There are also states who require state approval
of any written drug testing policy before it is put in place.
It is your task for this discussion to craft a memo to your boss, based on a specific state law, answering
the questions below. Do not pick a state that does not have a drug testing policy law, pick one of the
states that requires employers to provide current and potential employees with a written drug testing
policy (a link to assist is below). You will have to research the specific state law.
Here is a link to get your started. https://www.ohsinc.com/info/state-drug-testing-laws/
1. Set out the specific requirements for conducting a legal “drug-free workplace” policy specifically on
random drug testing. For each specific requirement in your policy, provide short justification for
inclusion in the policy [i.e., notice requirements, who is to be tested, now often, consequences for
refusing to take a random drug test etc.].
2. Next provide a general “drug-free workplace” testing plan. Some things to consider for your memo
are what specific subjects should be included in the policy memo, except random drug testing which you
will discuss in 1. above [i.e., pre-employment testing, scope of testing, list of drugs to be tested for,
employee retest request, consequences for violating drug policy, reasonable suspicion, what should
occur if employee tests positive, etc. This is not an all-inclusive list of subjects to be considered in your
general workplace drug testing policy memo.]
Use a minimum of one HR/legal reference to support your conclusions.
Here are additional links for you to reference.
https://employment.findlaw.com/workplace-privacy/drug-testing-at-work.html2
https://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter5-3.html
Discussion Topic #2 Progressive Discipline
Situation – You are the HR director at the State of Maryland Department of Health and Mental Hygiene.
A supervisor Josie comes to you and says that they are having various issues with the office manager.
Over the past few weeks, the office manager, named Sam, has been arriving at work consistently late.
Josie, Sam’s direct supervisor, has spoken to Sam several times about timeliness and reports that Sam is
having “personal issues.” On some occasions, although Sam’s jacket is thrown over the chair in the
office, no one can find or reach Sam for several hours at a time. The supervisor Josie suspects that Sam
is slipping out of work. Most of the required reports from Sam are submitted late, and when they are
turned in, these reports often have numerous errors in these important reports.
The supervisor Josie wants to terminate Sam, the office manager, immediately, but is willing to listen to
your HR advice on progressive discipline and what should be done with this employee. There is a
concern that the employee might retaliate by claiming discrimination, since Sam is a member of a
protected class.
1. Based on Maryland state law, write out a plan, addressed to the supervisor Josie, which includes steps
of progressive discipline, timing, documentation, and potential termination, if the earlier steps do not
achieve the needed results.
2. Include steps that can be taken and documentation that may be needed to protect the organization
against a possible claim of discrimination.
Use a minimum of two HR/legal references to support your conclusions. Here are some references for
you to consider:
https://health.maryland.gov/ohr/Documents/Documents/new-employee-handbook.pdf
