If an employer warns you that drug testing will be administered at work, you might want to know, Can I be fired for a failed drug test? Sometimes the answer to this question is yes, and sometimes the answer is no. In many cases, your employer needs to follow several detailed rules and protocols before they can terminate you for a positive drug test result. And at Brenton Legal, PA, we can help protect your livelihood and professional options when you are facing allegations of a failed drug test. We are highly experienced employment attorneys who are passionate about safeguarding Florida employees from the wrongful actions of their bosses.
Who Is Subject to Drug Testing?
There are three main groups who can expect drug testing at their workplace:
- Employees who hold mandatory drug testing positions in fields such as law enforcement, healthcare, safety inspection, operating heavy machinery, working in correctional facilities, working with confidential information related to criminal investigations, working with children, and fields where an employee’s inattention could cause injury or death to another or that require security background checks;
- Employees who work in special-risk positions, such as firefighters or employees in the criminal justice; and
- Employees whose employers comply with a drug-free workplace program under Florida’s workers’ compensation law.
While the laws that govern drug testing of the employees listed above allow employers to discipline those who fail, the laws provide several employee protections.
Rules Employers Must Follow When Drug Testing
When can you get fired for failing a drug test? You can get fired when your employer has complied with all drug testing laws before terminating you. But if your employer does not comply with the applicable rules before firing you, you can seek redress through an administrative complaint or lawsuit.
Many Employers Need to Give Notice
Typically, employees are entitled to notice before their employers engage in drug testing at work. Among other information, this notice needs to tell employees the following:
- The employer’s drug use policy,
- The types of drug testing the employer does,
- What common medications might affect test results,
- That the employee has a right to contest or explain a positive result,
- How an employee might be disciplined for failing or refusing to take a drug test,
- The drugs the employer tests for,
- How an employee or applicant can confidentially report their non-prescription and prescription medications to a medical review officer before and after testing,
- The employee’s right to appeal to the Public Employees Relations Commission or a court when a collective bargaining agreement or contract is involved, and
- The employee’s rights to confidentiality.
Employers that do not have a drug-testing program need to give notice at least 60 days before testing begins. But employers with drug testing programs that began before July 1, 1990, are not subject to the 60-day notice period.
Drug Tests Cannot Be Discriminatory
An employer that administers drug testing must administer the testing in an unbiased manner. This means that employers cannot single out the employees they subject to testing because of any of the following characteristics:
If you were fired after your employer engaged in discriminatory drug testing, you might have the right to file a wrongful termination claim with the Florida Commission on Human Relations or the U.S. Equal Employment Opportunity Commission.
An Employer Must Have a Valid Reason for Testing
If an employee is not in a mandatory testing or special-risk position, an employer can (or must) test under the following circumstances:
- When screening a job applicant;
- When there is reasonable suspicion of drug use;
- When the testing is for routine fitness-for-duty screening; or
- When the testing is valid, follow-up testing.
And Florida law has specific requirements for many of these testing categories.
Reasonable suspicion testing
Reasonable suspicion can include the following:
- The employee has been observed using drugs at work or exhibiting drug-related symptoms at work;
- The employee caused or was involved in a workplace accident;
- A credible and reliable source reported the employee for drug use;
- The employer has evidence that the employee used, possessed, or transferred drugs while working;
- The employee is exhibiting erratic, abnormal, or declining behavior at work; or
- There is evidence of the employee tampering with a work-related drug test.
If your employer falsely claims that there was reasonable suspicion to test you, speak to an attorney about your legal options and what evidence can protect you in a wrongful termination claim.
Routine fitness-for-duty testing
When a business or organization has an established policy or practice of performing routinely scheduled fitness-for-duty exams, drug testing can be part of those exams.
Employers must drug test employees who attend an employee assistance program for drug-related issues unless the employee voluntarily participated in the program. If the law requires testing, it has to be conducted at least once a year for two years after the program, and no advance notice can be given to the employee.
Many Employers Must Let Their Employees Contest the Results
In general, you have five days to explain or contest the results of your drug test to a medical review officer. During the time you have to challenge the results or explain, you are shielded from getting fired for failing a drug test. If you are fired before you have a chance to object, or if you are fired for taking a drug that was legally prescribed for disability-related reasons, you might have a right to take legal action against your employer.
There are several detailed procedures an employer must follow when it tests its employees for drugs. Having an attorney help you navigate your rights under these drug testing procedures is often vital to protecting you from termination, getting your job back, or obtaining compensation for your loss.
Brenton Legal Can Help
So, can you be fired for failing a drug test in Florida? That depends on the circumstances of your case. And our compassionate and highly respected employment attorneys at Brenton Legal can help ensure that your employer is held accountable for any wrong choices it makes when administering a drug testing program. We give straightforward advice to employees across Florida, and we are not afraid to fight for their rights. Schedule a consultation by contacting us online or calling us at 954-639-4644.