My Employee Failed a Drug Test: What Happens Now?

An employee’s drug test came back positive.  What you do next depends on several factors: your written drug and alcohol policy, the substance involved, your industry, your state’s laws, and whether the ADA may be relevant.  This is more nuanced than it used to be.

Start With Your Written Policy

The first question is: what does your drug and alcohol policy say? A well-written policy defines what substances are prohibited, what testing circumstances apply (pre-employment, random, post-accident, reasonable suspicion), and what the consequences of a positive test are.

If your policy states that a positive test results in immediate termination, and the employee signed and acknowledged that policy, your path is clearer, though still not without nuance.  If your policy is vague or silent on consequences, you have more discretion but also more exposure.

The Marijuana Complication

Marijuana is the substance where drug testing policy has become most complicated.  As of 2026, marijuana is legal for recreational use in a significant number of states.  Several states have enacted specific employment protections for off-duty marijuana use, restricting employers’ ability to discipline or terminate employees solely based on a positive marijuana test.

States including California, New York, New Jersey, Illinois, Minnesota, and others have enacted various levels of protection for employees who use marijuana legally outside of work.  The specifics vary: some states prohibit adverse action based solely on a positive test for marijuana metabolites (which can remain detectable for weeks after use); others require evidence of impairment at work.

If you operate in a state with marijuana employment protections, consult with HR or employment counsel before terminating solely based on a positive marijuana test.

Safety-Sensitive Roles

The analysis is different for employees in safety-sensitive roles.  Federal regulations, including DOT regulations for commercial drivers, mandate drug testing and define consequences for positive tests regardless of state law.  Employees subject to federal drug testing requirements are not protected by state marijuana employment protection laws.

If the employee operates a vehicle, works with heavy machinery, or is in another safety-sensitive role, your obligations and your latitude are defined by the applicable regulatory framework.

The ADA and Substance Use Disorders

Current illegal drug use is not protected under the ADA.  However, employees who are in recovery from substance use disorders (and who are not currently using) may have ADA protections.  Similarly, alcoholism is a recognized disability under the ADA.

If an employee discloses a substance use disorder in connection with a positive test and requests leave for treatment, you may have an obligation to engage in the accommodation process before terminating, particularly if this is a first occurrence.  This is one of those situations where an employment attorney’s guidance is worth the cost of an hour of their time. The accommodation process here follows the same framework as any other disability-related request. The same principles that apply to pregnancy and medical leave situations apply here too, as outlined in My Employee Just Told Me They're Pregnant: What Do I Need to Know?.

A Reasonable Response Framework

For a first positive test in a non-safety-sensitive role, many employers consider:

•       A written warning with a last chance agreement: a document stating that any future positive test will result in immediate termination

•       A mandatory referral to an Employee Assistance Program (EAP) if you have one

•       Unpaid leave to attend treatment if the employee requests it

•       More frequent testing for a defined period

For safety-sensitive roles or repeat violations: termination is typically appropriate and often required.

Whatever you decide, document your reasoning and apply it consistently across employees in similar situations. If termination is the outcome, make sure your separation process is airtight. How to Conduct a Termination Meeting walks through exactly what that looks like.

Get a Progressive Discipline Policy Template

A clear progressive discipline policy that addresses drug and alcohol violations, including which offenses result in immediate termination, gives you the framework you need to respond consistently.

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Questions about this or other HR topics? Visit pragmatichrgroup.com for more resources.