Your Employer has to be Fair

The way that a company handles positive drug tests will be based on several different factors, such as the nature of the work, the subject's employment history, when and where the drug taking occurred and how serious the drug abuse is believed to be. If they have evidence that the person was intoxicated while they were working, then the employee is likely to face more serious consequences than if the drug use occurred off the job and didn't affect their job performance.

Your employer will often not care at all what you do in your own time, but there are several important exceptions to this general rule. If the employer believes and can prove that there is a direct relationship between your actions off the job and your job performance, then they will probably be entitled to take disciplinary action. When an employee is engaged in illegal behavior off the job, it will be up to the employer to demonstrate that there is a link between those actions and job performance. This can be a difficult burden to prove. Companies will often cover themselves in case this should occur by making company policies that employees must be drug-free. They then claim that all employees have read the policy and still agreed to work for the company and abide by the conditions which means agreeing to not take drugs. Use of this argument has been approved by the Courts who agree that drug testing can be considered "voluntary" when it is mentioned in company policy. The reality is that employees have no choice but to volunteer!

Problems of Marijuana Use

There are several problems involved in the consumption of marijuana. While using marijuana is still illegal, in several jurisdictions possessing or using marijuana is a fairly minimal offence, comparable to a traffic offence. In the United States, marijuana is the most commonly used illegal drug, with particularly high rates for young people. It is generally not considered to be as serious as other harder drugs like cocaine, LSD, heroin or methedrine. Furthermore, several counties have now approved regulations that legalize marijuana for medical purposes.

Arbitration decisions involving marijuana use are a good example of the ambivalent attitude towards this drug. In some cases, an arbitrator has approved the firing of an employee for smoking marijuana on the company grounds, while in other cases this has been overruled. The case for terminating an employment contract is much stronger if it involves several incidents or finding a large amount of marijuana in the employee's possession. Finding such quantities will generally lead people to assume that the employee is dealing drugs.

A further problem with marijuana use is that traces of it stay in the urine for several weeks after it was consumed. There is a discordance between the attitudes in many communities that don't mind pot smoking and the serious consequences that are often faced by people who test positive for marijuana. The metabolites of cannabis are stored in the body's fat cells for a long time which means that a positive test result may be linked to usage that occurred several weeks beforehand. It is unlikely that this consumption had any impact on the person's job performance.

Passively Inhaling Marijuana

A further issue with cannabis drug tests is that a positive result can be returned even if the person didn't actually inhale a joint. Research has proven that simply being around other people who are smoking pot is enough to make your test come back positive even if you didn't smoke at all.

In a study conducted by Dr Cone at NIDA it was proven that the psychoactive element in marijuana, THC, actually builds up in fat tissues faster when people passively inhale marijuana smoke than it does when it is smoked! Moreover, people with higher amounts of body fat will have longer detection periods. According to Dr Cone, the detection times were as much as 9 days for the passive inhalation of second-hand smoke. It would obviously be very unfair for an employer to fire you because someone around you was smoking marijuana. Similarly, they cannot tell you what you are allowed to do for fun if you are not doing anything illegal yourself. If you face discipline at work as a result of a situation like this then you could possibly sue your employer for defamation or intrusion.

Employers have to respect procedures

If your employer suspects that you have been using drugs, they are required to act reasonably and with regard to the company policies and your employment history. They have to follow the set termination procedures in the company policies. The latitude that employers have is wider if the drug use involves a threat to public health or safety. Because there is often a link between using drugs or alcohol and workplace accidents, mistakes or other occasions where there has been a safety breach, an employer will have greater power to discipline an employee who is in a job position that may risk the safety of co-workers or the general public. These positions may include transport, public utilities or machinery operation. Nevertheless, your employer still has an obligation to be fair.


Employers must treat employment terminations for the reasons of drug or alcohol abuse as reasonably as terminations for other reasons. According to the Federal Mandatory Guidelines, the MRO is required to review all the facts to ensure that they are objective and that procedures have been followed accurately.

Companies must enforce their policies and procedures in a clear and consistent manner. If you receive a positive drug test result, then you should immediately as your company for a written copy of their drug test policy as well as the procedures involved in dealing with positive drug test results. Look out for any mistakes on inconsistent ways that you may be treated. You could possibly use these instances if the case goes to before the courts. Your company should give you the chance to explain your side of the story.

Progressive Discipline

The concept of "employment-at-will" means that your company can terminate your employment at anytime regardless of there being a valid reason. People working in the private sector, may encounter an employment-at-will scenario if the company doesn't have specific termination procedures in the employment agreement and the workers don't have union protection. The courts are now more inclined to support employees who have been terminated in an abusive or wrongful manner or in a situation that involves bad faith or a breach of public policy.

The company will normally have an employee manual or specific policy that is viewed as an employment contract. This means that even when an employment-at-will scenario exists, company policy should set out the consequences for failing a drug test and the procedures that are to be following in these situations.

If you test positive you should put together your contract of employment (provided that you have one), the employee manual and any additional notices that the company released to employees about their drug testing program. It's also important that you keep detailed written notes about the way that the company treats you. Your lawyer may want to argue that you were treated unfairly by the company and that the company didn't follow their own procedures.

Review by an Arbitrator

Employment contracts will often provide that terminations must be subject to review by an arbitrator. The arbitrator will consider a range of issues. Firstly, he or she will look into the accuracy of the employer's reasons behind the termination. Was the drug test sufficiently accurate? Was there a clear chain of custody for the urine sample? Was the drug test conducted according to proper procedures?

Secondly, the arbitrator considers whether or not the employee broke one of the company's rules of a term of the employment contract. If no clear rules exist, then the arbitrator may say that the discipline was unfair because the employee wasn't given sufficient notice of what would happen if they tested positive for drugs.

Thirdly, the arbitrator looks at the fairness and equity of the punishments that have been imposed. If he or she believes that the penalties are too harsh, then he or she can reverse the penalty and impose something else that they consider fairer. This is the point at which the arbitrator will consider your previous record, the seriousness of the behavior, your actions off-the-job and any other information that they feel is relevant. The arbitrator will usually question whether there was any progressive discipline and if there wasn't, why wasn't there. Labor agreements will usually state that compensation available from arbitration will only include getting reinstated with back pay. In employment-at-will situations, the employee may be entitled to damages including for mental suffering.

Termination of Employment

The arbitrator will also look into whether or not the employee was sufficiently informed about the company's drug testing policies, including the way urine is collected and the consequences of refusing to participate. If they believe that the distribution of the information is doubtful, then they are likely to rule in the employee's favor, particularly when there is the possibility that they could lose their job. The important thing for the employee to demonstrate is that there was insufficient information in the employee handbook or company policies about the drug testing procedures and the company's drug policies, or that these topics were covered in a brief or vague manner. The general rule is that companies must give employees advance information about the collection of urine samples and what may happen if an employee refuses.