If we have a drug-free workplace policy and implement random testing, can we fire an employee who tests positive even if the employee simply used marijuana outside the workplace and wasn’t impaired?
The short answer is, yes.
Employers in Wisconsin are allowed to do random drug testing of their employees. If an employer chooses to do so, the employee handbook should advise employees of the nature of the testing.
In Wisconsin, and throughout the United States, the vast majority of employees are “at-will.” At-will employees are not subject to an employment contract that dictates employment terms and conditions. An at-will employee may leave his or her employment for any reason, and their employment may be terminated for any reason, so long as such termination does not violate state or federal employment laws.
An at-will employee’s positive test for marijuana, regardless of where it was ingested, can be grounds for termination, without running afoul of Wisconsin law. However, the employee may still be able to collect unemployment benefits, depending on other facts and circumstances. For example, the agency that reviews unemployment benefits decisions in Wisconsin does not recognize hair samples for positive drug tests. If the only positive test is a hair sample, and the person was terminated for violating the drug-free workplace rule, they may be eligible for unemployment benefits.
While there is only one Wisconsin statute that deals with drug testing in the workplace, there are also federal laws to navigate, including: the Drug Free Workplace Act (DFWA); Department of Transportation rules; and Department of Defense rules. The DFWA not only applies to federal workplaces, but also applies to non-federal workplaces with a federal contract of $100,000 or more or a federal grant in any amount.
The bottom line is that as long as federal law does not apply to your workplace, an employee in Wisconsin can be terminated for violating a drug-testing program. However, as with any termination, the decision should be well-documented and should not be used as a pretext for terminating an employee for a reason that would violate state or federal employment laws.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.