Fail a Drug Test and Keep Your Job? It Could Happen

Remember that scene in Animal House, the one where Donald Sutherland is sitting around with Katy and some of the Deltas, smoking pot and discussing solar systems and atoms on the fingernail of a giant being? 

I kinda had that feeling as I read this recent opinion in which a CT federal judge addressed the Family and Medical Leave Act claims of a regular marijuana user who:

  • failed two consecutive workplace drug tests,
  • got caught trying to mask the results of a third drug test,
  • no-showed a fourth drug test, and
  • claimed FMLA violations after the company fired him

Under the FMLA, an eligible employee can take up to 12 weeks of leave in a 12-month period for, among things, his own “serious health condition.”  There are a few ways to satisfy the requirements for a “serious health condition.”  Basically, it’s (1) an illness, injury, impairment, or physical or mental condition that (2) involves continuing treatment by a health care provider or inpatient/overnight care, where (3) the employee cannot perform the functions of his position.

According to the DOL:

“treatment for substance abuse may be a serious health condition if the conditions for inpatient care and/or continuing treatment are met. FMLA leave may only be taken for substance abuse treatment provided by a health care provider or by a provider of health care services on referral by a health care provider. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”

Notwithstanding all of that, an employer can enforce its work rules against someone who tests positive for drugs. In this case, the employer had a policy that someone who tests positive for drugs can’t return to work unless/until they clean up their act.

But, Your Honor! Substance abuse is a “serious health condition.”

This isn’t an exact quote. But, it does mirror the way the court framed the plaintiff’s argument. And here’s the court’s takedown:

“The language of the regulation does not support plaintiff’s contention that the mere presence of marijuana in plaintiff’s body constitutes “substance abuse”: it denies FMLA protection to an employee for mere use of a prohibited substance, as opposed to receipt of treatment for substance abuse. No reasonable jury could conclude that the mere presence of marijuana in plaintiff’s body constituted “substance abuse” within the meaning of the FMLA and, accordingly, that plaintiff suffered from a ‘serious health condition.'”

But, Your Honor! My forced suspension made me literally unable to perform the functions of my position.

Same caveat as before. Similarly, the court gave this one the back of the hand:

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“I conclude that plaintiff was not incapacitated within the meaning of the FMLA because he remained physically capable of working; his inability to work was not ‘due to the serious health condition, treatment therefore, or recovery therefrom,’ but rather was due to his forced suspension until he could provide a negative drug test pursuant to defendant’s drug policy.”

But, Your Honor! I did undergo continuing treatment by a health care provider. I mean, my employer required me to take several drug tests, each of which required a “medical review officer” to certify the test results.

You know the drill:

“Plaintiff’s only activity during his forced suspension was passing the time until his body could rid itself of the presence of marijuana. This hardly qualifies as a regimen of continuing treatment. It equally strains credulity to believe that plaintiff’s provision of urine to a laboratory constitutes ‘treatment’ for substance abuse, and that this ‘treatment’ was supervised by a health care provider because a licensed physician was required to interpret the results of a plaintiff’s urine samples… Put simply, plaintiff’s forced suspension by operation of defendant’s drug policy did not provide him with a ‘serious health condition.’”

As wacky as the facts of this case are, a little twist could have changed the ultimate outcome. That is, if the plaintiff actually received substance abuse treatment after he tested positive the first time, that leave from work would have qualified for FMLA leave.

Therefore, if you are inclined to give someone a second chance after testing positive for drugs at work — you don’t have to, but if you do — if you are a covered employer, you should immediately notify the employee of his rights under the FMLA, insist on a completed medical certification, and then notify the employee whether the leave will be designated as FMLA-qualifying.

This article first appeared on The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


4 Comments on “Fail a Drug Test and Keep Your Job? It Could Happen

  1. If the employee is not in a position where s/he is operating equipment whose operation would be impaired by various substances (or other legitimate reasons), why would you want to drug test someone?

    1. My personal opinion? How bluntly can I put this? It’s systematic oppression, created for political manipulation, mainly for keeping poor folks poor, while lining one’s own pockets in the process. The whole privatized for-profit prison system has a lot to do with it. Prisoners make for terrific cheap labor for large corporations. Some form of common practice needs to be questioned, then publicly railed against, then outlawed. Then, the corporations have a “captive” work force to deploy, and the employees basically are enslaved. Work, or face serious consequences.

  2. I have my own story regarding this. It had a favorable outcome. I was tested when a coworker, apparently trying to get some kind of work disability, falsely accused me of hitting him while I was driving a fork lift. There were witnesses who came forward on my behalf, and the lying coworker was fired the same day, but by then I’d been forced to ride to a clinic with my supervisor for a drug test, while still working that same day. I flunked. I’ve smoked pot since I was a teen, and was in my late 50’s when this happened. I didn’t smoke it on the job, or prior to showing up for work, but it was in my system from regular use. I had worked at the company over 10 years at that time. I had an overall great work record. I was given a 3-day suspension for flunking the test, but with a caveat: I couldn’t return to work until I could “piss clean”. When I asked people at the hospital and at the pharmacy if there was anything I could do to get the THC out of my system, I got accused of trying to “cheat” in some vague way. I countered by pointing out that they would provide treatment immediately, if there was any other kind of toxin in my system, and that I was merely wishing to be fit for work in every possible way. I learned of the variety of detoxifying agents on the market, but chose to not try any of them, as they only acted to disrupt the tests for a day or so, and the THC would still be in my system later on. I was paying child support at the time & didn’t have much money saved. I was able to get one day’s vacation pay each week, for 4 consecutive weeks, while suspended. It was just enough to cover my weekly deduction for insurance & child support, and I got a check each week for about 11 dollars. This was what I had to live on for a month, but I did it. Finally, I was asking an HR staffer about the long delay in returning to work and she told me to schedule a test, since about a month had gone by, and so I did. I passed and was allowed to return to work. I was given very kind & fair treatment, and in a short time, things were pretty much back to normal. I got a raise not long after that, too. I ended up putting in a total of 16 years at the company, before I had a sudden chronic health issue & had to walk away from my job. I’ve always questioned the legitimacy of drug testing, since any of several other issues could make an employee a far greater risk to the company. Many people take shortcuts and don’t have any apparent concern for safety, and people on out floor had been seriously injured at times. I turned in an impressive safety record at the job, and there were never any issues with my fitness or my attitude. I was relieved that my pot use was now out in the open, and no one ever complained about my work output, my work quality, or my manners. Where is it carved in stone that anyone on earth can take possession of my body fluids? This whole drug-testing business is Draconian by any modern standard. They’ve never bothered to find out if people come to work hung over, or outright drunk. The entire principal of testing should be considered a grave intrusion against the rights of the individual. Had it not been for that one coworker, no one might have ever known that I smoked pot, judging by my work performance. But only because they found out, I had a major setback in my life, which was very difficult to get through. And for what? I have a stack of my yearly work reviews to prove that I did very well and got several raises & promotions over the years I spent at my job. “Finishes his own work early & helps others finish their work.” “Pays attention to details & completes difficult tasks without needing supervision.” “Randy has been doing a lot of the more-difficult jobs.” “Randy shows outstanding work skills and has been promoted to a welding position, having taught himself to weld in his spare time.” Sounds just like the kind of worker that needs a suspension, because of some trace chemicals we found in his urine. No, that last one wasn’t quoted from my reviews. I just added it for sarcasm. But you probably see my point.

  3. I failed a drug test 6 r 7 months ago taking presciption meds I told the superintendent I got a prescription for it I didn’t get it filled yet so I took my gf meds we both have the same so showed him my prescription he put me back to work 6 months later he said that he just found out I didn’t get it filled to afterwards I tested im like I told you what was what now all of the sudden the job done slowed down n people r being laid off you terminate me n tell me to go thru the dot program and he’ll put on the rehire list do they have the right to do that

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